Yellow Bins (Waste Disposal) Ltd (applicant) v the Environmental Protection Agency (respondent) and Thomas O'Connell, Bernadette Crean and Edwina Murphy (notice parties)
Judicial review - Waste management - Conditions attached to grant of waste licence - Whether requirement that Environmental Protection Agency consult with planning authority before granting waste licence - Whether decision to grant licence with conditions attached ultra vires - Waste Management Act 1996 (No. 10), section 54.
The High Court (before Mr Justice Ó Caoimh); delivered July 9, 2004.
The term 'substantial grounds' for granting leave to apply for judicial review had to be construed in the context of a decision under the Waste Management Act 1996 in a similar manner to that pertaining to the Planning Acts. The purpose of Section 54 of the Waste Management Act 1996 was to ensure consultations between the planning authority and the Environmental Protection Agency in circumstances where both bodies were involved in the decision making process. In circumstances where no planning permission had been granted and no application for planning permission was pending for a development to which the provisions of the Waste Management Act 1996 applied, there was no reason why the Environmental Protection Agency should consult with the planning authority.
The High Court so held in refusing to quash a decision of the Environmental Protection Agency to grant a waste licence with various conditions attached.
Michael Cush SC and Jarleth Fitzsimons BL for the applicant; Brian Murray SC and Niamh Hyland BL for the respondent; Roger Sweetman SC and Paul Anthony McDermott BL for the notice parties.
Mr Justice Ó Caoimh said that the applicant applied for leave by way of judicial review to challenge a decision of the respondent, pursuant to section 43 (5) (a) of the Waste Management Act 1996. The relief which was sought were declarations that conditions 3.1 and 5.1.1 of a waste licence granted by the respondent to the applicant on October 8th , 2002, were null and void, being ultra vires the powers of the respondent, and/or irrational, an order of mandamus directing the respondent to grant a waste licence to the applicant with the said conditions deleted and, in the alternative, an order of certiorari quashing the said decision.
Condition No. 3.1 attached to the waste licence provided that "the activity shall not be commenced until the infrastructure required under this licence is in place. Waste shall not be accepted at this facility without the written agreement of the Agency." Condition No. 5.1.1 stated that "All waste processing shall only be carried out in the waste transfer/recovery building as set out in Condition 3".
Mr Justice Ó Caoimh said that the grounds upon which the relief was sought were that the respondent had acted in breach of the rules of natural and constitutional justice in: (a) imposing the said conditions in circumstances where the respondent knew, or should have known, that the applicant had applied for planning permission in respect of certain infrastructural works which application had been refused on appeal by An Bord Pleanála and therefore was no longer in existence and, without having consulted with the said planning authority; (b) and/or that the said conditions were invalid as being ultra vires the powers of the respondent under the Waste Management Act 1996, in particular, section 54(4) thereof, in failing to consult with the planning authority in whose functional area the applicant's waste recovery and disposal activities would be carried out, namely Kildare County Council; (c) ignoring proper matters that the respondent should have taken into account. As a final ground, it was alleged that the respondent acted unreasonably, irrationally and arbitrarily in attaching the said conditions in that their effect were disproportionate to the benefit achieved; the cost of compliance was excessive; and the subject matter of the conditions were matters more properly regulated under the Planning Acts.
An affidavit had been sworn by Patrick Kelly who was the managing director of the applicant which was a company carrying on business as a waste collection, recovery and disposal operator since 1982 at Naas, County
Kildare . Mr. Kelly acknowledged that the terms of the Act of 1996 and the regulations made thereunder required the applicant to make application to the respondent for a waste licence in respect of the disposal of waste at its existing waste transfer facility on or before October 1st , 1999. Accordingly, the applicant applied to the respondent for a waste licence on September 30th , 1999. The Agency indicated it proposed to grant a waste licence and provided a copy of the proposed licence with conditions by notification dated May 13th , 2002. An Bord Pleanála refused planning permission for erection and use of a building for waste recycling and transfer on the 15th May, 2002.
In the circumstances, Mr. Kelly said that he was advised that there was no longer a planning application in existence after that date. On that basis he believed that the respondent was obliged to consult with Kildare County Council pursuant to the provisions of section 54(4) of the Act of 1996.
Section 54(4) of the Act of 1996 as originally enacted provides that "Where a permission under Part IV of the [Local Government (Planning and Development)] Act 1963 has been granted or an application has been made for such permission in relation to any development comprising or for the purposes of a waste recovery or disposal activity, the carrying on of which requires the grant of a waste licence, the Agency ( a ) shall consult with the planning authority in whose functional area the activity is or will be carried on in relation to any development which-
(i) is necessary to give effect to any conditions to be attached to a waste licence in respect of the activity, and
(ii) the Agency considers is not the subject of a permission or an application for a permission under Part IV of the Act of 1963, and
(b) may attach to the waste licence such conditions related to the development aforesaid as may be specified by the said planning authority for the purposes of proper planning and development , or more stringent conditions as the Agency may consider necessary for the prevention, limitation, elimination, abatement or reduction of environmental pollution from the activity."
It was submitted by the applicant that, insofar as it was possible to divine the intention of the Oireachtas in enacting section 54(4) of the Act of 1996, the type of development referred to in section 54(4)(a) was a development which satisfied two conditions. First, pursuant to subparagraph (a)(i), the development had to necessarily give effect to any of the conditions attached to a waste licence, in respect of an activity which was going to be carried on in the development. The second condition which appeared to be required in order to impose a duty on the respondent was contained in subparagraph (a)(ii), namely the development had to be of the type which the respondent considered was not the subject of a permission or an application under section 34 of the Planning and Development Act 2000.
As regards the application of subparagraph (a)(ii), it was submitted that, at the time when the respondent was considering its decision in respect of the applicant's waste licence application, the development of the applicant's facility was not the subject of a planning permission or an application for a permission. In such circumstances, it was submitted that there was a mandatory duty on the respondent to "consult with the planning authority in whose functional area the activity is or will be carried out".
Referring to the judgment of Mr Justice Henchy in The State (Elm Developments Limited) v. An Bord Pleanála ILRM 108, the applicant submitted that the obligation was mandatory as it could be said to be an "integral and indispensablepart of the statutory intendment" underpinning section 54 of the Act of 1996 which governed the interaction of planning and waste management codes in a number of specific circumstances.
It was, therefore, contended that the decision of the respondent was susceptible to judicial review under the heading of procedural impropriety as, in making the said decision, it failed to observe a mandatory procedural rule expressly laid down in section 54(4) of the Act 1996.
In response, the respondent submitted that it would require the clearest words before such an intention as contended by the applicant could be ascribed to the Oireachtas in enacting section 54(4) of the Act of 1996 and that the words therein were inconsistent with such a contention.
The respondent submitted that section 54(4) of the Act of 1996 required it to consult with the planning authority where a waste licence application was pending before the respondent in the limited circumstance where a developer had been granted or was seeking land use permission for the general works required in connection with the activity requiring the waste licence, but had not been granted nor sought permission for particular works necessary to give effect to the conditions which the respondent believed were appropriate before the licence was granted.
It was submitted that in that particular circumstance, it made sense that rather than force the developer to return to the planning authority to modify the permission granted, or to alter the application which was pending so as to accommodate the requirements of the condition, the respondent itself would, in effect, grant the necessary permission. It was also submitted that it made sense that before this was done the planning authority was consulted. This exigency did not apply where the general development was not within the planning process at all as the developer could absorb the requirements of any licence granted by the respondent within his eventual application to the planning authority.
The respondent submitted that section 54(4) of the Act of 1996 was to ensure consultation between the planning authority and it where appropriate and that it expressly applied only where both bodies were involved in the decision making process. Thus, the wording of it specifically provided that it applied where planning permission had been granted or an application had been made for such permission in relation to any development comprising or for the purposes of a waste recovery or disposal activity, the carrying on of which required the grant of a waste licence. As, on the applicant's own case, at the date of the grant of the licence there was no permission granted or application for permission made, the respondent submitted that one of the pre-conditions necessary under section 54(4) in order for the obligation to consult with the planning authority to arise did not exist and on that basis alone, the applicant had failed to establish any substantial grounds.
The type of situation that the 'liaison procedure' provided for in section 54(4) of the Act of 1996 was intended to catch was where there was an application for permission, for example, in relation to a building but there was no application in relation to the type of yard surrounding that building.
The respondent might impose a requirement in relation to the yard, specifying for example that the yard must be concrete. That requirement would meet the cumulative conditions as it would: (a) be necessary to give effect to conditions to the waste licence and; (b) not be the subject of a permission or application for permission under Part IV of the Act of 1963.
The fact that one of the cumulative conditions had been met in that the existence of a waste transfer works was required in order to give effect to the conditions in the licence was not sufficient.
It was submitted that, in those circumstances, either on the facts as pleaded by the applicant or on the alternative view of the facts, the necessary pre-conditions that would give rise to an obligation of consultation with the planning authority did not exist. In those circumstances, it was submitted that the respondent had no duty to consult with the planning authority and therefore the applicant's allegation that the respondent breached section 54(4) of the Act of 1996 by failing to consult was manifestly not a substantial ground. It was submitted that to interpret the provisions in any other way would effect an absurdity and would undermine the clear and evident intent of the Oireachtas and in this regard the respondent referred to Nestor v. Murphy I.R. 326 and Director of Public Prosecutions (Ivers) v. Murphy 1 I.R. 98.
Dealing with the applicant's case of irrationality and the breach of the requirements of proportionality it was submitted that in order to establish irrationality of this kind the applicant had to meet the high test set down in O'Keeffe v. An Bord Pleanála 1 I.R. 39 and The State (Keegan) v. Stardust Compensation Tribunal I.R. 642. In circumstances where the Act of 1996 specifically empowered the respondent to impose conditions in relation to the specification of the facility where waste may be recovered or disposed of under the licence, the respondent's decision did not meet the requisite test of irrationality.
It was further submitted that the applicant, who bore the burden of proof of establishing substantial grounds, had failed to put forward any reasons or evidence as to why the conditions were supposedly irrational and disproportionate.
In conclusion, it was submitted by the respondent that section 54(4) of the Act of 1996 provided a mechanism whereby specific responsibility for the effective granting of underlying permission for a very particular type of development shifted from the planning authority to the respondent and if the general development was within the planning system, and no permission had been granted or sought for the particular works required by the respondent, there was a clear logic to avoiding the necessity for resubmitting planning applications to take account of such works by the planning authority.
It made sense in that very particular circumstance for the respondent to effectively discharge the planning function; it was only where that exigency arose that the necessity for consultation presented itself, otherwise the provision did not apply.
Mr Justice Ó Caoimh said that it was not in dispute that the term 'substantial grounds' had to be construed in the context of the Act of 1996 in a similar manner to that pertaining to the Planning Acts and the decision in McNamara v. An Bord Pleanála 3 I.R. 453. He accepted the submissions made on behalf of the respondent that the purpose of section 54(4) of the Act of 1996 was to ensure consultations between the planning authority and it in circumstances where both bodies were involved in the decision making process.
Mr Justice Ó Caoimh also accepted the submissions made by the respondent that where circumstances existed showing that an application for permission or permission had been granted the respondent was only obliged to consult with the planning authority in relation to the development which met the two cumulative conditions: (a) that it was necessary to give effect to any conditions to be attached to a waste licence in respect of the activity and; (b) the respondent considered that the development was not the subject of a permission or an application for permission under Part (IV) of the Local Government (Planning and Development) Act 1963.
Mr Justice Ó Caoimh further accepted the submission of the respondent that, in the circumstances where no planning permission had been granted and no application for planning permission was pending, there was no reason why the respondent should consult with the planning authority.
He also accepted the respondent's submission that an important distinction had to be drawn between the development comprising or for the purposes of the activity and the development which was necessary to give effect to a condition, which was a specific aspect of the activity, necessarily environmental in nature.
Mr Justice Ó Caoimh believed that any construction other than that contended for by the respondent would give rise to an absurdity and accordingly did not accept that the applicant had demonstrated substantial grounds as required by section 43(5)(b) of the Act of 1996 in support of its contention that the decision of the respondent was invalid or ought to be quashed.
In the circumstances, Mr. Justice Ó Caoimh said that the applicant was not entitled to the relief which it sought.
Solicitors: Arthur Cox (Dublin ) for the applicant; Barry Doyle & Co. (Dublin ) for the respondent; Michael O'Neill (Naas) for the notice parties. Paul Christopher , Barrister