From being a small fishing village on the western side of Cork harbour, Ringaskiddy village is now both a substantial ferry port and a major industrial centre with a number of multinational pharmaceutical companies such as Pfizer, GlaxoSmithKline, Centocor, Novartis and Recordati. Around 60% of Ireland’s hazardous waste is created in the Cork area and this, allied to the concentration of pharmaceutical companies, is part of the reason why six licensed incinerators operated by the pharmaceutical companies exist in the area. Ireland is one of the few European countries (Greece and Portugal are the others) which has to export nearly all of its toxic waste because the predominant waste disposal method in Ireland has been land-fill rather than incineration.
It was factors such as this that led Indaver Ireland Limited, part of an international waste management group with facilities and operations in Belgium, Germany, Ireland and the Netherlands, to announce in May 2001 that it proposed to build two incinerators at Ringaskiddy. The first incinerator was to be for a 100,000 tonnes per annum incinerator for hazardous and non-hazardous industrial and commercial waste. Indaver planned to build a subsequent incinerator for non-hazardous commercial and household waste. The traditional method of waste disposal in Ireland, land-filling, sits at the bottom of the preferred options of the European Union Waste Strategy which, based on the proximity principle (i.e. that waste should be dealt with as close as possible to where it is produced) puts waste prevention, recycling and incineration ahead of land-filling as the preferred methods of dealing with waste. This policy found expression in Ireland’s National Hazardous Waste Management Plan 2001 which argued that incinerator facilities were necessary if Ireland was to become self-sufficient in hazardous waste management.
Indaver applied for planning permission to Cork County Council on the 13th November 2001. Over 20,000 people objected to the application and although the County Councillors refused to grant permission, they did so on the sole ground that the development would constitute a material contravention of the Development Plan. The majority of the elected 48 Councillors in fact voted in favour of the application but this was less than the number of votes needed in circumstances where a planning application involves a material contravention of the Development Plan.
Indaver appealed this refusal to An Bord Pleanála while a large number of interested persons (including a group calling itself the Cork Harbour For A Safe Environment (CHASE)) appealed on the basis that the refusal should have been made on further grounds.
An Bord Pleanála decided to hold an oral hearing under the control of Mr. Philip Jones, a Senior Planning Inspector of the Board and the hearing was held over 13 days in September and October 2003.
The grounds of objection advanced by CHASE and others were numerous. They criticised the site selection process as not complying with World Health Organisation Guidelines and argued that its location at the end of the peninsula, with only one access road and where it was subject to the risk of seawater flooding and erosion on the eastern side of the site in storm conditions rendered the site entirely unsuitable. For example, the WHO Guidelines recommend against locating incinerators near high-density residential housing areas and educational establishments. The Ringaskiddy incinerator would have been 2km across the harbour water from Cobh which has a sizeable residential population and would have been located less than 100m away from the National Maritime College of Ireland.
Of particular concern to the objectors was what they regarded as multiple breaches of Council Directive 96/82/EC on the control of major accident hazards involving dangerous substances (the Seveso II Directive) which was implemented into Irish law by the European Communities (Control of Major Accident Hazards Involving Dangerous Substances) Regulations 2000. The National Authority for Occupational Safety and Health (NAOSH) is the relevant authority established under the 2000 Regulations. NAOSH wrote to the planning authority on the 7th March 2002 indicating that it “did not recommend against” the grant of planning permission. A body of evidence, apparently uncontradicted, was given on behalf of the objectors before the oral hearing of the Board that this advice was significantly deficient in numerous respects. At the Board’s request, NAOSH officials gave evidence to the oral hearing. Among the criticisms made were that NAOSH:
(a) had not conducted any modelling of offsite impacts of fires in waste containing biologically active pharmaceutical waste or specified risk material;
(b) did not realise that there was an 18-inch high pressure gas main pipeline running through the site and therefore did not take the additional risks posed by that pipeline in the event of a major accident into account at all;
(c) did not realise that the site was subject to coastal erosion and therefore did not calculate any risk factor posed to the integrity of the plant in the event of an accident;
(d) did not advert to the fact that the site was immediately adjacent to a public beach and thus contra-indicated in site selection terms in the Seveso II Directive;
(e) were not aware of the groundwater conditions where there is an inflow of seawater;
(f) did not collect any evidence about the hazard record of the proposed incinerator type, a fluidised-bed incinerator; and
(g) mistakenly asserted that the modelling for likely accidents scenarios on site would not cause structural damage to the adjacent National Maritime College when the data submitted by Indaver itself to NAOSH showed in fact a likelihood that the windows of the college would be blown in.
The Inspector submitted his report of the hearing to the Board on the 5th January 2004 in which report he concluded that the proposed development should be refused for 14 distinct reasons. Unusually, he did not even make any recommendations to the Board as to conditions which might be imposed in the event that it was minded to allow the development to proceed. He concluded that it would not be prudent for the Board to rely on the land use planning advice given by the NAOSH which he characterised as being “based on incomplete and inaccurate information and incorrect assumptions.”
He considered that the Board should conclude that there was not sufficient evidence before the Board to satisfy it that the proposed development would not pose risks to public safety in the event of major accident hazard. He found that the Environmental Impact Statement which Indaver had submitted was inadequate and failed to comply with the relevant European Directives.
Notwithstanding the views expressed by Mr. Jones, the Board proceeded by a decision of the 15th January 2004 to grant permission for the development subject to a number of conditions. While the Board accepted that the development was in breach of the Cork County Development Plan, the Board placed reliance on the national policy that Ireland had to become self-sufficient in relation to its handling of toxic waste. Despite the criticisms made by the Inspector of the evidence given on behalf of NAOSH, the Board simply stated that it had regard to the advice of NAOSH which did not recommend against the grant of planning permission.
Although Indaver still had to obtain a waste licence from the Environmental Protection Agency (and it was the division of function between the planning authorities on the one hand and the Environmental Protection Agency on the other that was to prove critical in the subsequent legal battle), a number of the members of CHASE led by Mary O’Leary commenced High Court proceedings on the 9th March 2004 by way of judicial review seeking to quash the Board’s decision (O’Leary –v- An Bord Pleanála & Ors).
The judicial review procedure requires that applicants for judicial review apply to the High Court for leave to commence the judicial review proceedings. In the area of planning law, the applicants have to show that they have “substantial grounds” upon which they are asking the Court to quash the decision in question. Both An Bord Pleanála and Indaver vigorously opposed CHASE’s application but following various exchanges of affidavits, the High Court granted CHASE leave on the 24th January 2005 to challenge the Board’s decision on a number of grounds. These grounds included a claim that the decision was invalid because the Board failed to carry out an integrated assessment of the project as required by the provisions of Council Directive 85/337/EEC (the Environmental Impact Assessment Directive or the EIA Directive), which failure, it was alleged, stemmed from the State’s failure to properly transpose the provisions of the EIA Directive into domestic law.
Meanwhile, Indaver applied to the Environmental Protection Agency for a waste licence (which it needed in addition to the planning permission from an Bord Pleanála). The controversy was intensified when in July 2004, the government appointed a former executive of Indaver as a director of the EPA although the EPA made it clear that she would not participate in any EPA decisions concerning incinerator licences.
On the 27th October 2004, the EPA gave a provisional decision to grant a waste licence to Indaver for the Ringaskiddy incinerator (and for another incinerator in Co. Meath). This was not a final decision however as CHASE and other interested parties stated on the 28th October 2004 that they would seek an oral hearing. (Ironically, on the day in question a storm resulted in the incinerator site being submerged in 3ft of water which CHASE seized upon as demonstrating the unsuitability of the site).
The EPA oral hearing ran for 2 weeks in February 2005 but on the 22nd November 2005, the EPA made its final decision granting the waste licence to Indaver.
In a second set of proceedings (Ringaskiddy and District Residents’ Association Limited –v- EPA & Ors), the applicants sought to quash the EPA decision by way of judicial review where again, one of the principal grounds of challenge was that the decision was invalid as a result of the State’s failure to properly transpose the provisions of the EIA Directive into domestic law.
CHASE and the other applicants then sought a hearing date for these judicial review proceedings. However, the critical issue of the transposition of the EIA Directive had also been raised in distinct proceedings concerning a different incinerator to which An Bord Pleanála, the State and Indaver were all parties (Martin –v- An Bord Pleanála & Ors). The State (with the support of the Board, the EPA and Indaver) successfully applied to adjourn the fixing of a hearing date in respect of both Ringaskiddy proceedings pending the outcome of a Supreme Court appeal in the Martin case.
It was widely considered likely that the Supreme Court would refer the transposition issue to the European Court of Justice given that it involved a critical issue of interpretation of the EIA Directive and where the European Commission had already expressed concern as to whether Ireland had properly transposed the Directive.
The Supreme Court delivered its judgment in Martin on the 10th May 2007. The Court held that the EIA Directive had been properly transposed into Irish law and declined to make any reference for a preliminary ruling to the European Court of Justice, stating that there was no necessity to do so.
The full hearing of CHASE’s case against An Bord Pleanála (and the leave application in the case against the EPA) were then fixed for hearing for the 30th October 2007. It was apparent that in light of the Supreme Court decision in Martin the applicants could not maintain the argument based on the improper transposition of the EIA Directive in either set of proceedings.
Crucially, however, in the period leading up to the hearing, the applicants were wholly unaware of any ongoing communication between the European Commission and the State in relation to the adequacy or otherwise of the manner in which the EIA Directive had been transposed into domestic law, and still less were they aware of an imminent decision on the part of the Commission to bring infringement proceedings against the State in respect of that issue.
On the 17th October 2007, a few days before the High Court hearing, the applicants learned for the first time, from a report in the Irish Times, that the Commission was expected to bring legal action against the State relating to the issues surrounding the transposition of the EIA Directive. On the same day, the Commission decided unanimously to institute such proceedings against Ireland under what was then Article 226 of the EC Treaty.
From communications with the Commission, the applicants became aware that a reasoned opinion had been notified by the Commission to Ireland on the 29th June 2007, that the State had responded to this and that the Commission, considering the response inadequate, had decided to institute proceedings against Ireland.
On the 30th October 2007, the applicants applied to the High Court for an adjournment of their proceedings in circumstances where, from a purely domestic law viewpoint, those proceedings would (at least in relation to the transposition issue) inevitably fail but where, if the Commission’s proceedings against Ireland before the European Court of Justice were successful, the Supreme Court decision in the Martin case would be effectively overruled. The essential ground for the adjournment application was the need to avoid a potential conflict between a decision of the Irish High Court which would, inevitably, have to hold that there was nothing wrong about the transposition of the Directive given the Supreme Court decision in Martin, and a decision of the European Court of Justice if the Commission transpired to be successful in its proposed proceedings. Nonetheless, the High Court declined to grant the adjournment. The applicants then appealed that refusal to the Supreme Court (where the High Court agreed to defer the hearing pending the outcome of that appeal).
However, by the time the appeal came on before the Supreme Court on 9th June 2008, there did not appear to be much progress by the European Commission in actually bringing the proceedings which they had announced against Ireland. Accordingly, by a decision of the 31st July 2008, the Supreme Court dismissed CHASE’s appeal against the decision of the High Court refusing the adjournment.
While the Supreme Court was prepared to accept that the Commission, having made a decision to bring proceedings, would as a matter of probability commence such proceedings at some stage in the future, the Supreme Court maintained that it did not know the final formulation of the legal basis upon which the Commission would bring proceedings against Ireland and that the risk of a conflict depended on the speculation that the Commission would be successful. In the circumstances, the Supreme Court was not satisfied that there was a substantial risk of a conflict of decisions and dismissed the appeal against the refusal to grant a stay or adjournment.
While this meant that the applicants in both sets of Ringaskiddy proceedings lost those proceedings, the Supreme Court’s confidence that there was no substantial risk of a conflict of decisions transpired to be misplaced. On the 4th February 2009, the Commission commenced proceedings against Ireland before the European Court of Justice alleging a failure on the part of Ireland to properly transpose the EIA Directive. By a judgment given on the 3rd March 2011, the Court of Justice upheld the Commission’s complaints thus vindicating the argument that had been the foundation of CHASE’s and the other applicants’ attack on the decision of both An Bord Pleanála and the EPA.
The transposition issue can be summarised as follows. The 1985 EIA Directive requires that projects which are likely to have significant effects on the environment are subject to a requirement for a “development consent” and an environmental assessment with regard to their effects. This Environmental Impact Assessment must identify, describe and assess in an appropriate manner the direct and indirect effects of a project on factors such as human beings, fauna, flora, soil, water, air, climate, the landscape, material assets and the cultural heritage. Critically, Article 3 of the EIA Directive requires that the Environmental Impact Assessment should assess the interaction between these factors.
The Irish implementing legislation in 1992 introduced a sharp division of function between the planning authority (and, on appeal, the Board) on the one hand, and the Environmental Protection Agency (which has the responsibility for issuing the integrated pollution control licences) on the other hand. In deciding whether or not to grant planning permission, the Board is obliged by statute to disregard matters which relate to the risk of environmental pollution from the activity. (The only exception to this is that when the matter first comes before the planning authority, it has to decide whether an Environmental Impact Statement is needed at all and it takes this decision by reference to both planning and environmental considerations. However, once it decides that an EIS is necessary, the planning authority thereafter does not evaluate those parts of the EIS which deal with the risk of environmental pollution from the activity).
Conversely, when the EPA comes to decide on the grant of an IPC licence in respect of the various emissions etc. which are to be controlled by such a licence, it must confine its consideration of the project to matters which relate to the risk of environmental pollution from the activity.
The fundamental point which was made by CHASE and the other applicants and then by the European Commission was that by giving exclusive jurisdiction on planning matters to the planning authority and exclusive jurisdiction on environmental matters to the EPA, no provision was made for the mandatory requirement under Article 3 of the EIA Directive that the Environmental Impact Assessment should assess the interaction between all of the relevant factors. Indeed, the structure created by the implementing legislation positively prevented a consideration of this interaction and therefore prevented both the planning authority (and on appeal the Board) and the EPA from carrying out the type of Environmental Impact Assessment required under the EIA Directive. This is the argument which, although rejected by the Irish Supreme Court in the Martin case, was upheld by the European Court of Justice in the decision of the 3rd March 2011, Case C-50/09.
Ireland’s argument was that Article 3 of the EIA Directive states that the assessment is to be made “in accordance with Articles 4 to 11” and that since the Irish legislation does provide for the matters that are dealt with in Articles 4 to 11 (collecting and exchanging information and allowing for the possibility of consultation between the different agencies), Ireland must be deemed to comply with Article 3. However, the European Court considered that Articles 4 to 11 were merely procedural provisions which did not concern the implementation of the substantial and much more fundamental obligations contained in Article 3. While the planning authority is obliged to “take into account” an Environmental Impact Statement where it accompanies an application for a planning permission, that falls short of an obligation to carry out an Environmental Impact Assessment and to assess the interaction between the various factors set out in Article 3.
The Court had no difficulty with the concept that the “development consent” required by the EIA Directive could be made up of two separate consents given in two successive stages (the planning permission from the planning authority or the Board and the IPC licence from the EPA). But the Irish legislation did not require any coordination between these two activities. The fact that as a matter of practice a developer requires both a planning permission and an IPC licence did not in itself bring about the consequence that either of the relevant authorities considered the interaction between the factors mentioned in Article 3. The fact that the authorities have a discretion to consult with each other fell short, in the Court’s view, of the obligation to ensure that the interaction between the relevant factors was considered as part of the Environmental Impact Assessment.
The Court identified the oddity that the EPA has no entitlement to call for an Environmental Impact Statement with a view to then conducting an Environmental Impact Assessment. Instead, the power to call for an EIS is reserved to the planning authority which, having received it, cannot make an assessment on environmental grounds. Thus, the bizarre situation could arise that an application could be made to the EPA for an IPC licence (prior to any application to the planning authority for planning permission) and the EPA would then have to make its decision without the benefit of any Environmental Impact Statement and where it has no power to call for such an EIS. Accordingly, the European Court held that Ireland had failed to fulfil its objectives under the EIA Directive.
Mary O’Leary and the other members of CHASE and the Ringaskiddy and District Residents’ Association may have lost their individual legal battles but they won the war because given the length of time the various legal proceedings and appeals took, the 5-year life of Indaver’s planning permission expired before they could commence any construction work on the project.
However, on 28th November 2008 Indaver made an application for a fresh planning permission under a new fast-track procedure whereby applications for projects of strategic national importance can be made directly to a new Strategic Infrastructure Development Section of An Bord Pleanála. The Board held an oral hearing from the 27th April 2009 until 18th June 2009 presided over by one of the Board’s Senior Inspectors, Ms. Oznur Yukel-Finn who recommended refusal on 30th October 2009. On the 10th June 2011 the Board refused to grant Indaver permission to build the incinerators on four grounds.
First, the Board was not satisfied that the development would be compatible with the Waste Management Strategy for the region. Secondly, the Board considered that the development would constitute over-development of the site and seriously injure the amenities of the area. Thirdly, the road serving the site is at the risk of flooding and the Board was not satisfied with the proposed mitigation measures. Finally, the Board was not satisfied that it had sufficient information concerning the risk presented to the site from coastal erosion in the future. Mary O’Leary described herself as “totally stunned and obviously delighted with this decision.”
However, a fresh legal battle commenced when the High Court granted Indaver leave on the 25th July 2011 to commence judicial review proceedings of An Bord Pleanála’s decision. Among the grounds relied upon by Indaver is the possibility that An Bord Pleanála may have been unaware of a decision by Cork County Council in May 2010 to cancel plans to build an alternative waste facility in Cork. Insofar as the Board relied upon the Council’s plans to build its own waste facility as a primary reason for refusing Indaver’s application, Indaver argues that the Board failed to take into account a relevant consideration. The current situation is that the Board has filed its papers in opposition to Indaver and the matter now awaits a High Court hearing.
As for the European Court decision of the 3rd March 2011 that Ireland failed to properly transpose the EIA Directive, no amending legislation has yet been introduced to bring Ireland into compliance with the European Court decision although one presumes that there must be draft amending legislation under consideration. Otherwise, Ireland will find itself facing further proceedings from the Commission for failure to comply with the judgment of the Court of Justice. Meanwhile, Mary O’Leary, her friends and colleagues are lining up to support their erstwhile enemy, An Bord Pleanála, in its High Court defence against Indaver. This is a fight that is clearly not over.
Michael M. Collins, SC is a Senior Counsel and a member of the Bars of Ireland, England and New York. He practises in the areas of EU law, environmental law, competition law, commercial law and international arbitration. A former chairman of the Bar Council of Ireland and a Bencher of King’s Inns, he is a Fellow of the International Academy of Trial Lawyers and an Adjunct Professor at University College Dublin Law School.