The planning permission granted for a Co Kildare landfill has cast a shadow over the workings of An Bord Pleanála, writes Grace Garvey
The High Court commercial courtroom feels masculine, not least because the man sitting next to me is a burly detective - in court today not in the line of duty, but to protect his property rights, and those of his neighbours, from the heavy hand of the State.
Pat Higgins is chairman of Usk and District Residents' Association, which is challenging a decision by An Bord Pleanála to grant permission for a landfill development within walking distance of his home in Co Kildare. It has taken six years to reach this point.
Mr Justice Peter Kelly is not known to suffer irregularities gladly. The first person up is Brian Murray SC, counsel for the planning appeals board which, it seems, is coming out hands in the air, conceding that it has failed to follow correct procedure in relation to the landfill site at a former quarry in Usk, near Kilcullen. As a result, it cannot show that the decision to grant planning permission has been lawfully made.
Oisin Collins BL, counsel for the residents' association, tells the court his client has "grave concerns as to how the board goes about its job". "The board throughout this application has moved heaven and earth to accommodate the developer," Collins adds.
Ownership of the quarry was passing between two companies, Kilsaran Concrete Ltd, which had agreed to sell the site to waste management developer, Greenstar Recycling Holdings Ltd. The sale was subject to planning permission being obtained to use the quarry to process 200,000 tonnes of non-hazardous waste per year for 10 years.
That Kilsaran Concrete had been quarrying the site illegally in the first place - and had been ordered by Mr Justice Quirke in the High Court in 2004 to reinstate the site to agricultural use, an order it had not yet complied with - was, strangely, not seen by Kildare County Council or An Bord Pleanála as a bar to the planning application process.
Following a four-day oral hearing, An Bord Pleanála's planning inspector, Mary Cuneen, completed a report in July 2005 recommending a refusal of planning permission and outlining four reasons for that refusal. These included traffic hazard considerations, the proximity of local residents and attendant adverse affects on property values, visual intrusion caused by an acoustic barrier required, and the fact that the development would be "premature" in advance of compliance works necessitated by Mr Justice Quirke's High Court order of December 2004.
The following month, and before the board meeting, a member of the board, Brian Swift - former Fianna Fáil city and county councillor for Waterford as well as former lord mayor of the city - discussed the matter with the inspector on August 3rd 2005, according to a memo exhibited before the court.
Two days later, the inspector sent a memo to Brian Swift detailing further questions that might be put to the developer, Greenstar Holdings. Since the board had not yet met to discuss the inspector's report and determine the application, Usk residents questioned why Brian Swift - in advance of such a meeting - took it upon himself to talk to the inspector. In attempting to overturn the subsequent planning permission, the residents alleged that, in discussing the case with the inspector, Brian Swift was seeking to pre-empt the board's decision.
Some of the residents live just 30 metres from the site, according to Higgins. He said: "For six years now, we have fought to protect our local environment. We have had to do the work of the county council to stop illegal quarrying by Kilsaran Concrete."
All of this agitating has come with a hefty price tag, and to date, the residents have spent €300,000 defending their rights. "What is the point of us spending €56,000 on a four-day oral hearing if the board can turn around and disregard the report it results in?" Higgins asked.
The residents want to know why An Bord Pleanála is so keen to place a landfill on their doorstep, given that a landfill site in nearby Drehid operated by Bord na Móna has capacity to meet the area's needs. Indeed, if the Usk landfill were to go ahead, Higgins believes the Drehid landfill will not be viable as it will be unable to meet its quotas. "It is only commercial interests that will suffer if this landfill is refused," Higgins said.
On July 24th, 2006, five members of the board decided to grant planning permission for the proposed landfill. The Usk residents had two months to bring a judicial review application but they were faced with a problem. An Bord Pleanála would not allow access to the files needed to assemble their case.
JOHN COLLINS, SOLICITOR for the residents' association, said this was consistent with the behaviour of An Bord Pleanála throughout. "We couldn't get access to the files, they wouldn't answer our correspondence and any information we got had to be dragged out of them," Collins said. The day before the limitation period expired, An Bord Pleanála made the file available.
Collins discovered anomalies on the file, concerning the addition and deletion of planning conditions and date discrepancies. The board had granted planning for the landfill subject to 24 conditions. "These are complicated planning conditions," Collins said, "and site specific." But the board claims these were not recorded in writing at the meeting of July 24, 2006. Instead, the board said in a letter to the court that it asked Brian Swift to memorise details of the conditions and orally pass them on to the inspector after the meeting. The inspector drafted the conditions - running to eight or nine A4 pages - based on this oral communication and gave them back to Swift. "We are asked to believe that conditions governing all aspects of a major infrastructural development could be drafted in a single meeting, committed to memory by a single individual and then communicated to a third party in a single conversation. I just don't think that's credible," Collins said.
In any event, a judicial review application was made to the High Court and An Bord Pleanála did not attempt to defend its decision. The board conceded its decision-making process was flawed because it failed to keep adequate records of the meeting at which planning permission was granted.
The court was asked to remit the application back to the board so that it could be reviewed. The Usk residents, however, argued that the flaws in the board's decision went beyond procedural matters and were substantive in nature. They wanted the planning permission quashed, a decision that would require the developer, Greenstar Holdings, to reapply from scratch.
IN HIS JUDGMENT, delivered on March 14 last, Mr Justice Peter Kelly decided to quash the decision granting planning permission for the landfill and to remit the matter to the board for reconsideration. He also recommended that the oral hearing be reopened and that the five board members who originally dealt with the appeal should no longer deal with it.
The judge was at pains to make it clear that none of this was to be taken as an implication of wrongdoing on the part of the board. His recommendations were simply intended to minimise the risk of further judicial review, he said.
When asked for a comment, a spokesman for An Bord Pleanála reiterated that the decision should not be taken as an acceptance by Justice Kelly of criticisms made by the Usk residents. Citing the board's code of conduct, which prohibits members from talking to the media, the spokesman confirmed that neither board member Brian Swift nor board chairman John O'Connor would be commenting on the matter.
Higgins cautiously welcomes the judge's decision, "but only if the board follows his recommendations". "We remain concerned. Planning permission is one of the most valuable commodities which the State dispenses and it is crucial that the process is fairly administered and seen to be fairly administered," Higgins said.
Referring to a recent case in Co Wicklow in which the board refused permission for new windows in a house because of concern for cattle in a nearby field, Higgins said: "My only hope now is that the residents are shown a fraction of the consideration afforded to the cows."