The High Court has refused most of Cork Harbour Alliance for a Safe Environment’s requests for documents in its challenge to planning permission for a waste incinerator and groundworks at Ringaskiddy, Co Cork. It directed An Bord Pleanála to swear an affidavit addressing whether it held certain documents about a raised plateau that were not on the public planning file.
The ruling by Mr Justice David Barniville, delivered on 15 February 2019, concerns an interlocutory application in a judicial review. The underlying challenge to the Board’s 29 May 2018 planning decision was due to be heard over eight days from 19 March 2019. The judge did not decide the challenge to the permission itself.
The Alliance alleged that the project had been split between planning applications to avoid Seveso requirements and a full environmental impact assessment. It said the raised plateau on the Western Fields part of the site was intended to facilitate a future waste transfer station. The Board denied that this was its only possible purpose; the notice parties, Indaver Ireland Limited and Indaver NV Ireland trading as Indaver Ireland, denied that it was built for that purpose.
The judge refused discovery of the plateau-related documents from both the Board and the notice parties. He said the public planning file was available to the Alliance and that documents held by the notice parties but not before the Board were not necessary to assess the Board’s decision. However, because the Board’s claim that everything it knew about the plateau was on the public file had not been confirmed by affidavit, he directed it to state on oath whether it held relevant documents outside that file at the time of its decision. If it did, it must identify them and say where they can be found.
The court also refused the Alliance’s request for documents or information identifying what each Board member individually considered at specified meetings. The judge accepted, for the purpose of the application, the Board’s position that it made decisions as a corporate body, that the full file was before it, and that it did not keep records of the precise items considered by individual members.
On the alleged objective bias issue involving former Deputy Chairperson Cathal Boland and his past work with RPS-MCOS Consulting Engineers, the Board agreed to search for and disclose documents using a specified methodology. The judge did not require Mr Boland to swear the discovery affidavit unless he agreed; if he did not, another Board member was to do so. The notice parties had provided an affidavit confirming searches and no additional relevant documents, which the Alliance accepted in place of an order.
The judge refused a separate request for an order requiring the Board to identify on oath documents relied on by its members and provide further details concerning Mr Boland’s involvement. He recognised the Board’s duty of candour but found no established breach at this interlocutory stage. The final terms of the orders remained to be settled, and the court gave liberty to apply.