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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Arklow Holidays Ltd. v. Wicklow County Council & Anor [2003] IEHC 68 (15 October 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/68.html Cite as: [2003] IEHC 68 |
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Arklow Holidays Ltd. v. Wicklow County Council & Anor [2003] IEHC 68 (15 October 2003)
THE HIGH COURT
JUDICIAL REVIEW
Record No. 99/358 JR
IN THE MATTER OF THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACTS, 1963-1997.
BETWEEN
ARKLOW HOLIDAYS LIMITED
APPLICANT
And
WICKLOW COUNTY COUNCIL AND
ARKLOW URBAN DISTRICT COUNCIL
RESPONDENTS
Judgment of Mr. Justice Murphy dated the 15th of October, 2003.
1.1 Background
The applicant, in the first application, is a limited liability company whose directors Jeremy and Brendan Hynes are the applicants in a second, similar application. The parties agreed to proceed with the first application only which was heard over a period of nineteen days in June and July last.
Arklow Holidays is a company which owns a caravan park with a capacity for 1,400 units. The caravan park is located to the west of the R.750 coast road to Brittas Bay, and is adjacent to the proposed site at Johnstown/Sallymount which was the subject of the grant for planning permission of July, 1999 for a waste water treatment plant. There had been a previous grant of planning permission in 1994 in respect of which questions relating to the environmental protection of the sand dunes were raised by the European Union. The subsequent application proposed a "no dig" procedure in relation to the outflow pipe through the sand dunes. Mr. Jeremy Hynes said that the applicant drew water from two wells and had a pumping house on adjoining land closer to the proposed waste water treatment works. The applicant argued that the planning permission granted by the first named respondent (hereinafter called "Wicklow") in respect of the application by Arklow U.D.C., the second named respondent (hereinafter called "Arklow") was in material contravention of the Wicklow development plan, was in breach of regulations and did not deal with the issue of ground water and/or odour impact, among other matters.
A preliminary three day hearing earlier this year on whether the applicants had leave to deal with an issue of bias was determined by this Court in the negative.
The subsequent nineteen day hearing in June and July last was based on extensive grounds, many detailed technical affidavits and cross examination of some of the deponents.
Leave had been granted by Finnegan J. (as he then was) on the 10th November, 2000 to apply for reliefs of certiorari quashing the decision of Wicklow County Council (Wicklow) and certain declarations in relation to s. 39 of the Local Government (Planning and Development) Act, 1963 (as Amended), to s. 23 of the Local Government (Planning and Development) Act, 1994 and in relation to Article 3 of the Environmental Impact Assessment Regulations, 1989, leave was granted on eleven grounds in the revised statement. (see 3.1 below)
It is useful, at this stage to indicate the sequence of events particularly over the past four years.
1.2 Chronology
24.02.94 first grant of planning permission upheld by Bord Pleanála.
12.01.99 second application by Arklow to Wicklow.
10.03.99 Wicklow's Notice requiring information from Arklow
00.05.99 revised environmental impact statement (EIS).
21.06.99. responses by Wicklow to further information.
13.07.99. decision of Wicklow to grant permission.
10.08.99 applicant's appeal to Bord Pleanála
10.09.99. grounding affidavit of Jeremy Hynes.
25.11.99. replying affidavit of Dermot O'Brien, planning officer for Wicklow.
10.11.99. application for leave on notice.
00.12.99. voluntary discovery agreed.
00.01.00. motion for discovery.
12.10.00. further and better discovery sought.
10.11.00. leave granted – Order of Finnegan J.
14.11.00. date for filing amended grounding statement.
13.11.00. revised statement: eight reliefs sought
08.12.00. statement of opposition of Wicklow and Arklow.
00.02.00. technical affidavits filed.
29.04.03. preliminary hearing on bias.
30.05.03. – 08.07.03 present hearing
1.3 Permission granted subject to conditions
Wicklow by order dated the 13th July, 1999 decided to grant permission for development of the proposed site, namely:
Ten year permission for waste water treatment works and associated sewers and roads at Seabank, Arklow subject to the fourteen conditions in relation to odour and noise. The following conditions were referred to at the hearing:
"4. The mitigation measures and attenuation features recommended in relation to noise under section 9.3.3 and 9.3.4 of the Environmental Impact Statement should be implemented in full and the stated noise levels should not be exceeded. The noise levels should be monitored by an independent specialist, acceptable to the planning authority, at the three sites surveyed for the Environmental Impact Statement. The monitoring shall, initially, be within three months of the plant being commissioned and thereafter as required by the planning authority. The results of monitoring shall be submitted to the planning authority.
REASON: To control noise levels in the interest of the amenities of the area.
5. The recommended mitigation measures in relation to odour under s. 0.5 of the Environmental Impact Statement (EIS) shall be implemented in full and the stated emission rates shall not be exceeded. Odour shall be monitored by an independent specialist, acceptable to the Planning Authority at the three EIS sites referred to in Condition 4 (Noise) within three months of the plant being commissioned, and thereafter as required by the planning authority.
REASON: In the interests of the amenity of the area.
In addition the following conditions were included:
7. PRIOR TO COMMENCEMENT OF DEVELOPMENT ON THE SEABED, a survey shall be carried out of whelk and seed mussel fisheries in the vicinity of the outfall pipe. Dredgings from the outfall excavations shall not be deposited on or within a reasonable distance of these fisheries.
REASON: to protect fisheries in the area.
11. Doors to screenings and filter rooms in all buildings with noisy plant to have self-closing doors.
REASON: to prevent noise and odour nuisance.
13. Plans and elevations of the odour treatment buildings shall be submitted to and agreed acceptable in writing by the planning authority BEFORE DEVELOPMENT COMMENCES. The footprint of the building shall be in keeping with that indicated on the site layout submitted and the design and finishes shall be in keeping with the dimensions for building and screening houses.
REASON: in the interest of visual amenity and for clarification.
14. Any change to the treatment process proposed in this application shall require the agreement of Wicklow County Council and shall produce an effluent to at least the same standard as this proposal. Odour and noise characteristics of any such proposal shall be to the same or better standard as this present proposal. Visual impact if any such changes shall be similar to the present proposal and require agreement of Wicklow County Council.
REASON: to prevent noise and odour nuisance."
1.4 Wicklow County Development Plan, 1999.
The development plan was prepared and adopted by Wicklow County Council at its meeting on 8th March, 1999 in accordance with the requirements of the Local Government (Planning and Development) Acts 1963-1998. It replaced the 1989 County Development Wicklow Plan.
It described the landscape zone of outstanding natural beauty as including the coastal area, which had a very high vulnerability (1.3.7). Arklow was included as one of the nine primary growth areas in Wicklow. (Table 2.1.) Notwithstanding its growth rate was designated as low, 30% to 50%, rising from 8,557 in 1996 to 12,000 in 2016.
Between the Wicklow and Arklow urban areas all of the coastline is designated as being of outstanding natural beauty (map 2F and table 3.1). A zone of outstanding natural beauty has as its zoning objective the following:
To provide for agricultural and forestry uses, to allow for essential rural housing needs and to provide for development in accordance with the policies outlined for other land uses in this development plan, which are consistent with the landscape zoning.
The zone of outstanding natural beauty is flanked by a corridor area and an extensive special amenity area to the west (including Avoca) before one comes to the mainly rural areas (including Aughrim).
Map 3 in part 2 of the Development Plan indicates that within the area of outstanding natural beauty there are some vulnerable aquifers. Map 24 shows vulnerable sand and gravel aquifers north and south of Wicklow town. These are not listed as a water body on map 15.
According to the development plan Sallymount/Johnstown has some six kilometres of a coastline north of Arklow and south of Brittas Bay (see map 9). Map 14 shows the Arklow sand dunes about 5 kilometres south of Maharabeg dunes.
Both the southern and northern parts of the areas of Sallymount/Johnstown are prone to erosion as is over half of the coastline between Wicklow and Arklow (see map 11). This forms an uninterrupted part of the Wicklow Arklow preliminary route for coastal walking (map 13 B). There are no vernacular structures, landmarks for protection, national monuments or areas of architectural potential or significance in the area.
The only view of special amenity value or interest listed in maps 6 D or 7 D is the view of the sea and coast and the prospect of Ballymoyle Hill at the north of the Sallymount/Johnstown coastal zone strategy cell at the N11 road south of Scartanagh Cross.
"7.10 Sallymount/Johnstown.
This cell consists of the costal strip between Ballytunny in the North and Porters Bridge, on the Arklow UDC boundary, in the south. The cell is bounded to the east by the N11. Fine stretches of sandy beach are easily accessed along the shoreline.
Policy:
(1) To prevent the further expansion of caravan and mobile home parks into areas that have as yet remained undeveloped.
(2) To prohibit any physical development within the Ferrybank Sand Dunes Area of Scientific Interest that would have a detrimental effect upon this Dune complex.
(3) To provide for and facilitate improved waste water treatment works for the Arklow Urban Area and Arklow Environs Area.
Control Objectives:
To protect existing public access to the shore at Johnstown North and Ennereilly."
Section 2.4.4 provides "the Council will preserve all views and prospects of special amenity value or special interest from unnecessary and harmful development".
Section 3.3.11 of the plan provides "the Council will reinforce and preserve the scenic quality of this zone by restricting development in it. The Council will require the submission of a visual impact assessment where planning application is made for development in an outstanding natural beauty zone. The Council will seek to open up views of the sea from the coast road and the lakes from the lake roads and to restrict development on the seaward/lake ward side of the road where it would be injurious to the amenities of the beaches/lakeshores or injurious to tourism, or where it would be visible between the road and the sea/lake, except were settlements already exist or where section 3.3.1 applies.
2.1 Summary
The case on behalf of the applicant in regard to the substantive issues was made under several headings as follows:
1. The proposed development was in material breach of the County Development Plan.
2. The environmental impact statement is deficient in failing to take into account the affect on ground water.
3. The planning application is deficient in failing to comply with Articles 19 and 23 of the Local Government (Planning and Development) Regulations, 1994.
4. The decision to tunnel the outfall pipe is based on inadequate information.
5. The environmental impact statement did not deal, or adequately deal, with the impact of odour.
Extensive affidavit evidence and the cross examination of deponents ranged from general considerations of the planning application to specific technical considerations of the Environmental Impact Statement (EIS).
2.2 Notice requiring information
On the 10th March, 1999 Wicklow informed Arklow that the information submitted was not adequate to enable a decision to be made (and) in pursuance of Article 33 of the 1994 Regulations notice was given requiring detailed information under Article 15 regarding, inter alia, alternative locations considered with costings, capacity of plant, construction techniques proposed for tunnelling and sea outfall, distance of the nearest cottage, sludge treatment process proposed, estimated odour emission rate, washing, impact of excavation and filling, and odour.
In relation to odour, eleven detailed technical requests were made.
3. Issues
3.1 Pleadings: Motion
By Notice of Motion for the 27th November, 2000 the applicant sought the following orders:
1) An order of certiorari quashing the decision of Wicklow of the 13th July, 1999, granting planning permission to Arklow for development reference 23/99 at Seabank, Arklow.
2) A declaration that the said decision was ultra vires and null and void for failure to comply with s. 39 of the Local Government (Planning and Development) Act, 1963.
3) A declaration that the said decision was ultra vires and therefore null and void on the grounds of failure to comply with the provisions of Article 23 of the Local Government (Planning and Development) Regulations, 1994 in relation to details of plans, drawings and maps.
4) A declaration that the said decision is ultra vires and null and void on the grounds of failure to comply with the provisions of Article 3 of the Environmental Impact Assessment Regulations, 1989. (The European Communities (Environmental Impact Assessment) Regulations, 1989, (S.I. No. 349 of 1989) relates to interpretation of the Council directive and of "Environmental Impact Statement" as a statement prepared in accordance with a requirement of or under any enactment of the effects, if any, of which a proposed development, if carried out, would have on the environment.)
5) Such further or other orders as the court shall see fit.
The grounds upon which such relief was sought were as follows:
(i) that the first named respondent failed to comply with the requirements of s. 39 of the Local Government (Planning and Development) Act, 1976 as amended by s. 22 of the Local Government Act, 1963 as amended (sic)
(ii) Article 23 of the Local Government (Planning and Development) Regulations, 1994.
(iii) that the first named respondent failed to comply with the provisions of the Environmental Impact Assessment Regulations, 1989.
(iv) that the first named respondent failed to comply with the requirements of Article 23(1) of the Local Government (Planning and Development) Regulations, 1994 and thereby deprived the applicant herein of his rights under the Planning Acts to consider the effects of the development and under the Constitution to protect their property rights.
(v) that the first named respondent failed to comply with the provisions of Articles 15 and 16 of the Local Government (Planning and Development) Regulations, 1994 in that the content of the public notice published in the newspaper and erected on the site of the proposed development was misleading in that it failed to reveal plans for a structure within the area within which development was specifically precluded in the said public notice. The notices failed to disclose the entire nature and extent of the proposed development.
(vi) making the said decision without taking into account all material facts and in particular without taking into account all information it was required to under law.
(vii) failing to take into account the fact that the said development did not comply with the provisions of the development plan for the said area.
(viii) failing to take account of the constitutional rights and fairness on the property rights of the third parties in making the said decision.
(ix) failing to afford the applicants a full and informed opportunity to consider the effects of the development application and to make submissions which were fully informed in order to protect their constitutional rights and in particular their constitutional rights to protect their property.
(x) failing to comply with the provisions of the Environmental Assessment Regulations, 1989 and EC Directive 85/337/EEC.
(xi) that the second named respondent misled the first named respondent by failing to provide them with all the information which was relevant to the application and all the information which they are required to do under law thereby depriving the first named respondent with the opportunity to properly assess the said development.
Leave had been given by Finnegan J. (as he then was) on the 10th November, 2000 in respect of the grounds set out above.
3.2 Statements of Opposition.
On the 8th and 15th December, 2000 Arklow and Wicklow filed similar statements of opposition denying the applicants entitlement to the relief claimed. The decision, they stated, was made in accordance with Article 5 of the Groundwater Directive 80/65/EEC as amended; complied with the provisions of section 39 D of the Local Government (Planning and Development) Act and with the provisions of Article 23(1) of the 1994 Regulations and of Article 3 of the Environmental Impact Regulations of 1989. The applicant was not deprived of its rights to consider the effects of the development or its right under the Constitution to protect its property rights. Wicklow at all material times complied with Article 15 and 16 of the 1994 Regulations. The public notices were not misleading and, in particular, the applicants were not misled. The notice disclosed the entire nature and extent of the proposed development.
Wicklow said that it took into account all material facts. The development proposed complied with the provisions of the County Development Plan and Wicklow took into account all the constitutional rights, fairness and property rights of all parties affected. The applicants were afforded a full and informed opportunity to consider the effects of the proposal, to make submissions and to protect their property. The provisions of the EC Directive 85/337/EEC were at all material times complied with. Wicklow was not misled by Arklow who furnished all material relevant to its application. Wicklow was not deprived of the opportunity to properly assess the development.
4. Affidavits
Mr. Jeremy Hynes, Director of Arklow Holidays Ltd., in the first named application, swore a grounding affidavit on the 10th September, 1999. That affidavit was replied to by Mr. Dermot O'Brien, the planning officer for Wicklow, on the 25th November, 1999. Mr. Hynes replied to that by way of affidavit dated the 17th December, 1999. A second affidavit of Mr. O'Brien and two affidavits of Mr. Seosamh Ó Ruairc, consultant for Arklow, were also filed, in addition, Mr. Sean Quirke, Town clerk of Arklow, deposed to the application for planning permission.
Eight detailed expert affidavits on behalf of the applicant were filed in February, 2002.
4.1 Applicant's Affidavit (10th September, 1999)
Mr. Hynes described the sand dune complex and the Arklow UDC application for planning permission in 1994, the opposition, including European Commission opposition to Arklow in relation to the trenching of the Ferrybank sand-dune area and the second submission of a planning application on 12th January, 1999.
Based on advice he had received Mr. Hynes was concerned by the possible effects of the project on the existing caravan park. He says he had operated the caravan park in Ferrybank for over 35 years. He was advised that the project would be prejudicial to the development of the caravan park because of the following:
(i) adverse effects due to odours and noise,
(ii) adverse effects on the ground water source of water supply for the caravan park,
(iii) adverse noise and odour effects which the project would have on the amenity areas over which the applicant has control,
(iv) the prejudicial impact the project would have on the future of the caravan park because of customers perceptions that the future performance of the facility would not meet the standards/problems experienced such as in Greystones.
Mr. Hynes said that since mid February, 1999 he regularly visited planning section of Wicklow to review the Arklow planning permission and that the decision of Wicklow on the 18th June, 1998 to permit a conversion of an existing outbuilding and Seabank house to six two-storey mews houses and the erection of sixteen single storey houses at Seabank was refused by an Bord Pleanála during March, 1999 on grounds (inter alia) that "the site is located in an area designated on the current Wicklow County Development Plan as an area of outstanding natural beauty".
He was unable to prepare evaluations to the effect of the waste water treatment project because of the limited information provided by Arklow to Wicklow in the application, the environmental impact statement and related correspondence.
Mr. Hynes detailed the evaluation of odour emission, noise effects referring to the sections of the plan. He referred specifically to the Development Plan Strategy (2.1.2) of the Development Plan; to Coastal Zone Management Policy (2.4.10), Heritage Objectives (2.5.1-2); Tourism Objectives and Development Control Objectives in relation to zones of Outstanding Natural Beauty (3.3.11); Coastal Zone Management Objectives (3.4) and (4.11).
The grounding affidavit queries the claim contained in the Environmental Impact Statement (page 39) that "the treatment plant will have minimal visual impact on its surroundings …" and that "the planning requirement for Wicklow … which is that the view would be protected along the entire length of its exposure to the site, will be respected." Several submissions were made in this regard.
In relation to odour emissions, Mr. Hynes referred to the description of structures and skips which could be the source of odours and that the prediction of odour quantity was only speculative. He noted a letter dated 14th May, (1999) from
P.H. McCarthy and Ors., Arklow advisors to Wicklow which stated; "the final arrangements for odour removal will be function of the plant and machinery chosen for the works, most significantly the sludge dewatering plant."
He believed that a credible evaluation of the probable range of periodic rates of odour emission rates for the projected structures and skips could not be carried out without plans and drawings of the floor plans, sections and elevations of structures including equipment, and the likely odour emission levels from each element or structure on the project and other information relating to the problem of sewage treated and the related odour emission rates for particular processes at different hours during the day.
He said that the developer has not submitted any investigation of noise effects or of the effect on the ground water aquifer below the seabank land from which the applicant draws its water supplies. No reference was made to facilities to monitor and intercept leakages from the structures, vessels or pipelines of the project. He believed that the provisions of article 5 of the Ground Water Directive 80/68/EEC required Arklow to advise Wicklow of the effect on the aquifer.
Mr. Hynes further submitted that Arklow's failure to file the necessary plans, sections and elevations and other relevant information was intended to conceal the nature and extent of the project and to mislead the applicant as to the effect of the project on their interest. In this regard he referred to Article 23 (i) (a), (b) and (e) of the Local Government (Planning Development) Regulations, 1994 in respect of 25 of the 28 structures referred to in appendix 1 in breach of those regulations. Moreover he submitted that the public notices were materially deficient in relation to requirements of Articles 15 and 16 of the 1994 Regulations.
Mr. Hynes further submitted that the proposed development as advertised is not what Arklow then proposed to carry out with regard to digging in the area between the treatment works and the sea. Arklow's application was, he submitted, fatally flawed because of its failure to assess the effects of the project on people using the seabank land.
Mr. Hynes finally submitted that the project materially contravenes the Wicklow County Development Plan in that it located the project on a site of special visual and amenity quality and sensitivity without any current review of heritage sites and in proposing a design which was materially intrusive to and destructive of the amenity character of the area and, finally, in misleading Wicklow about the visual impact of the project in contravention of section 3.3.11 of the plan.
4.2 Affidavit of Desmond O'Brien sworn 25th November, 1999.
Mr. O'Brien is a Senior Executive Engineer, planning officer of Wicklow. He referred to the site to the west of the Ferrybank sand dunes area in respect of which the application was made which he says is not actually situated within that area. He referred to the policy objective for the area which included a provision in relation to improved waste water treatment works.
He says that the application was made in order to comply with the provisions of the urban waste water directive which followed on a previous water application under planning reference 93/1280 which was granted in 1994. He says that the applicants appealed to An Bord Pleanála against that decision and had maintained a very close and diligent watch on the progress on both the previous application and the present application.
In relation to odour, he said that the Environmental Impact Study and further information received dealt with this satisfactorily and shows that there would be no odour nuisance at the caravan park.
The depth of clay over the aquifer would suggest that there would be no adverse effect on the ground water source on the caravan park.
In relation to noise and odour, Mr. O'Brien stated that the further information received dealt with noise and odour effect on amenity areas and showed, using rational analysis, that there would be no such adverse impact.
Mr. O'Brien further stated that the perceptions of prejudicial impact was not a matter for a planning application but was a matter for enforcement which could be pursued by any third party.
Mr. O'Brien referred to the applicants' appeal to An Bord Pleanála on the 10th and 12th August, 1999. Matters now before the court are matters which are properly before An Bord Pleanála and within their competence. They are matters of objection and not matters which ought to be subject to the present proceedings.
Mr. O'Brien denied that Arklow provided limited information to Wicklow. The information provided was satisfactory. Further information or clarification requested was dealt with during the processing of the application.
Mr. O'Brien stated that the question of control of odour emanating from the proposed plant was adequately dealt with in the Environmental Impact Statement and the further information subsequently received from P.H. McCarthy and partners and their consultants on behalf of Arklow. The same was true in relation to the control of noise emanating from the operation.
Mr. O'Brien referred to 14 conditions which were attached to the planning permission for the proposed plant. Several of these relate to the control of noise levels and the prevention of odour nuisance. (see 1.3 above)
Accordingly, Mr. O'Brien said, it was wrong to say that an evaluation of the noise effects was not submitted to Wicklow.
Mr. O'Brien did not consider that the level of possible leakages from reinforced concrete tanks would have a significant impact on the aquifer, especially given the depth of clay overburden on the aquifer.
There were only three structures above ground contained in the plan and plans and specifications and elevations were lodged with the application by Arklow. They were neither grossly nor materially deficient as alleged by the applicant.
Mr. O'Brien further stated that the notices in the newspaper and placed on site were not deficient. They set out the nature of the development. The requirements of the 1994 Regulations were satisfactorily complied with. These structures referred to were devices ancillary to the waste water treatment plans. The access shaft is a manhole by another name. The applicants were familiar with the minutiae and details of the application.
The reference in Mr. Hynes' affidavit to the application being fatally flawed because of failure by Arklow to assess the facts of the project on people using the land was satisfactorily dealt with by Arklow in chapters 12 and 13 of the Environmental Impact Statement with which Wicklow was satisfied.
The reference to unsubstantiated claims regarding visual impact in Mr. Hynes' affidavit, was addressed by Mr. O'Brien as follows:
"In assessing the visual impacts of this development the planning authority did not rely on the sketches referred to … but on the longitudinal and cross-section from the road to the dunes, in conjunction with assessments made on site."
He also referred to mounding and screening using plants and shrubs native to the area which would not impair the landscape features of the area.
He did not accept that the application had failed to have due and proper regard to the provision of the development plan. The Environmental Impact Statement dealt adequately with the impact which the proposal would or might have on the environment. In his view, the development was not materially intrusive to or destructive of the amenity character of the area, nor did it constitute a "permanent discordant and unsympathetic presence" in the area. The visual impact was adequately dealt with in the EIS. Section 2 provides a visual impact assessment be sought which was provided subsequent to Wicklow's request for further information. The question of compliance with the plan was discussed in depth between him and the planning officer who did the primary report on the application for Wicklow. The objective of paragraph 7.10.3 of appendix 7 was, he said, explicit, i.e. to provide for and facilitate improved waste water treatment works for Arklow Urban Area and Arklow Environs Area. Wicklow's assessments sought to reconcile the other general objectives of the plan with the design of the scheme. The other objectives were generally visual objectives and the design of the works, generally sunken and screened with mounding and planting, was considered to obviate adverse visual impacts.
In his opinion the proposed development did not materially contravene the plan and was in keeping with its objective.
4.3 Affidavit of Sean Quirke,
Mr. Quirke, Town Clerk of Arklow, deposed to the history of the proposal to construct a waste water treatment plant at Seabank in 1992. The decision to proceed was made at the meeting of the Arklow UDC on the 25th April, 1992; a public meeting was held on the 15th June, 1992 prior to the completion of the Environmental Impact Statement and a further meeting on 11th March, 1993 following its completion. The planning application was submitted to Wicklow in 1993; notification of a decision (subject to twenty conditions) was issued on 3rd September, 1993. A compulsory purchase order public inquiry was held on the 18th and 26th October, 1994. At both public inquiries the applicant objected trenchantly. Following the Public Local Inquiry an order was made by the Minister confirming the CPO. Arklow proceeded to apply to Wicklow for the necessary permission. The applicant made representations to the planning authority in respect of their concerns.
There was a second application made to Wicklow due to the opposition of the European Commission and the introduction of new mandatory regulations as referred to in Mr. Hynes' affidavit. The decision of An Bord Pleanála to grant permission was dated 28th February, 1994. This expired on 28th February, 1999. Consequently a second application became necessary. That application was made in order to comply with the proposal set out by the Government in their strategy study for options for the disposal of sewage sludge in Ireland.
Mr. Quirke referred to the reasons for refusal of planning permission for Seabank House in similar terms to Mr. O'Brien.
In relation to the 28 structures referred to by the applicant of which 27 were the source of odours, Mr. Quirke says that these include items such as manholes and a rising main. In relation to the complaint of no odour control information or assessment of the odour emissions, Mr. Quirke says that the whole purpose of the odour removal building is to deal with the possibility of odours emanating from the works. It is, in his words, "in effect the control building". There was no requirement to have controls on the odour control building. He says that 22 of the structures mentioned are either underground pipelines or underground chambers on the pipelines. There are three buildings, five process tanks (sedimentation, aeration), a skip and an oil/gas tank which was not included in any of the documentation submitted by Arklow. In relation to the criticism that two structures were enclosed and vented to the odour removal building without any specification provided, Mr. Quirke says that the "whole concept is to channel all odours to the odour removal building." He says that the processes are consistent with best available technology not entailing excessive costs – the so called batneec philosophy.
The specific type of equipment to be installed in works of that nature are never specified as it is a matter which arises in the tendering process when the contractors tender for work. They are not confined to using equipment from specified companies. The plans and specifications set down the parameters that the equipment must work to and the standards which must be achieved.
Mr. Quirke believed that Arklow's consultants, in preparing the Environmental Impact Statement, satisfactorily submitted to Wicklow their assessments of the level of control and emissions that can and will be achieved in order to satisfy Wicklow.
The applicants' complaint in relation to noise is that no noise attenuation features were provided in the EIS. Mr. Quirke refers to paragraph 9.3.3 and to table 9.2 with regard to the attenuation of noise levels emanating together with the generator silencer which, he says, are sufficiently clear to be understood by expert and laymen. In relation to reverberation, Mr. Quirke says that the projections are based on the assumption that the equipment will be well maintained and frequently serviced and that full information had been submitted to Wicklow who had accepted them. He referred to two surveys in relation to the aural environment in 1992 (section 9 of the Environmental Impact Statement) and in 1998, which supplemented the earlier data and found that there was no significant change.
Mr. Quirke said and believed that the applicant had a connection to the urban water supply in reference to paragraph 11 of Mr. Hynes's affidavit which referred to the caravan park's reliance for water supplies on the aquifers under the Seabank land. (Mr Hynes, in a subsequent affidavit said that the urban water supply was no longer being used by the applicant.)
Mr. Quirke referred to investigations carried out on behalf of Arklow in relation to the Ringsend Waste Water Treatment Works which showed no traces of contamination arising from leakages detected in the tanks over 20 years ago.
Mr. Quirke stated that to describe underground pipelines and associated chambers as "in the aggregate consisting (of) practically the entire project" was to ignore the main element of the project. Full detailed plans and specifications were lodged with the planning application in respect of the three over ground buildings. The application was neither deficient in any respect nor grossly and materially deficient as referred to by the applicant. Article 23 of the 1994 Regulations was not breached. A very full and detailed description of the project works was set out in the public notice posted on the site and published in the Irish Independent of 13th January, 1999. At the request of Wicklow further public notice was erected on the site of 17th May, 1999 and published in the Evening Herald on the 19th May, 1999.
The present application was a variation of the application decided on by the Planning Authority in 1994 in which the same issues were contested by the applicant.
Finally, Mr. Quirke avers that the "no dig" technique was to be used for the construction of the outfall pipe that is causing as little disruption as possible. He submits that the Environmental Impact Statement at chapters 12 and 13 refutes the assertion that the application was fatally flawed because of the failure of Arklow to assess the effects of the project on people using the seabank land and the national heritage area.
4.4 Affidavit of Seosamh Ó Ruairc of the 24th November 1999.
Mr. Ó Ruairc, partner of P.H. McCarthy and Partners Consulting Engineers, for Arklow agreed with the statements made by Mr. Quirke. His firm had been advising local authorities in the construction and provision and maintenance of waste water treatment works throughout Ireland for upwards of 100 years. In particular, he had advised on the Dun Laoghaire Harbour Ferry Terminal, the Malahide Waste Water Treatment Works and the Dublin Bay Project which included the largest waste water treatment plant in the county.
He believed that the comments made by Mr. Quirke in relation to the analysis of structure in the annex of the affidavit of Mr. Hynes to be correct.
The conclusion to the letter of Mr. Coppin of Wardell Armstrong (see 4.7 below) dated the 9th September, 1999 and appended to Mr. Hynes' affidavit reads as follows:-
"Conclusion
In conclusion, we consider that the EIS is deficient in several important respects and a number of issues have not been adequately addressed or even recognised at all. From the limited project information provided by Arklow UDC in the EIS, we consider that an impact assessment cannot be properly undertaken, and the conclusions drawn in the EIS should therefore be viewed with some suspicion. The data presented in much of the EIS is inadequate to determine whether the modelling or analysis of impacts that has been undertaken is valid."
Mr. Ó Ruairc believes that Wardell Armstrong were unaware of the differences in the practice relating to the preparation and submission of such a statement in the Irish as opposed to the United Kingdom context. There are three main elements in Irish practice. The first is the preparation of the environmental statement by the developer and the issue of same to the competent authority. Secondly, there is a public consultation thereafter in the form of a receipt of comments from the public and the statutory consultees. Thirdly, the assessment of the project and, in particular, the Environmental Impact Statement, by the competent authority, Wicklow in this case. It is a matter for the competent authority to make the assessment as to whether the statement is satisfactory and sufficient for the purpose of the application.
According to Mr. Ó Ruairc nothing in the Environmental Impact Statement was taken for granted. It complied fully with the requirements contained in the Regulations and the Directive on the preparation of such a statement. It was a matter for the authority to make the assessment as to whether the statement complies with the requirements of the regulations. Wardell Armstrong accepted that a separate planning application would have had to be made for any further development. An EIS would be required for this further development as was in the Malahide Waste Water Treatment works.
In relation to the treatment works design and the process description, Mr. Ó Ruairc believed that the approach of Wardell Armstrong to the issue indicated a lack of understanding and knowledge of the preparation design and construction of the works of which there were a large number of similar works in this country and worldwide. The approach adopted in this country is that environmental performance standards are imposed in the design of such works as is clearly set out in the non-technical summary of the statement. The works were of conventional activated sludge processed type. The design and planning stage of such works set the parameters and standards which must be achieved by an individual contractor. Equipment must meet standards set out which are not specified but clearly must meet specified standards.
Mr. Ó Ruairc disagreed with the statement regarding leakage. He agreed with Mr. Quirke's reference to the session investigation at the Ringsend Waste Water Treatment works. Sludge has been addressed in s. 3.6 of the EIS (dewatering on site, solids transferred to Wicklow Town according to the Department of the Environment's Strategy Study and Options for the Treatment and Disposal of Sewage Sludge in Ireland).
Mr. Ó Ruairc referred to the "no-dig" technique to avoid disruption to dunes, cliff and beach and, by extension, land, flora and fauna. Mr. Ó Ruairc believed that the case made by Wardell Armstrong in relation to ground water was based on the supposition that there would be a significant leak from the works. He pointed out that the applicant's caravan park was within the Urban District boundary and had a public water supply available and was in fact connected to that supply. Wardell Armstrong seemed to have ignored the statutory requirements to comply with the Urban Waste water treatment and bathing water regulations in relation to the outfall at approximately one kilometre offshore.
Mr. Ó Ruairc also referred to the noise assessment and to the 1999 report of Enviro Plan Services Limited exhibited in the applicant's affidavit. He said that the initial surveys in respect of the 1993 Environmental Impact Statement provided a comprehensive investigation into the noise implications arising from the development. The further survey carried out in 1998, the results of which are summarised in Table 9.1 of the 1999 statement, showed no significant change in the noise levels measured at three sites close to the proposed works, that is the seashore, Seabank House and Sea Road housing.
Mr. Ó Ruairc said that the works were designed with efficiency and environmental effectiveness in mind. The fabric of the structures would be capable of absorbing some of the noise produced by the machinery within. Insulating material of sufficient quality to carry out such absorption was specified. The details of items of plant known to produce significant level of noise were detailed in Table 9.3. The attenuation measures to be employed would combine to produce an acceptable expected noise level outside the buildings.
Mr. Ó Ruairc said that the concern expressed by Enviro Plan Services Limited relating to wind was taken into consideration. Prevailing winds at Rosslare Meteorological Station are, he says, predominately from the south west followed by winds from south and east. Most of the sounds from the works therefore that are carried on the wind will be carried out to sea and along the coast away from the caravan park site and most permanent residences. Easterly winds occur most commonly in the Spring before visitors return to the caravan park. For these reasons wind was not given weighty consideration in the Environmental Impact Statement.
4.5 Eugene Daly's Report (2nd December, 1999)
Mr. Eugene Daly prepared a report on the potential impact of the proposed works on the water supply for the caravan park and on the adequacy of the compliance in Arklow's planning application and Environmental Impact Statement. The report also examined the adequacy of Wicklow's assessment of the planning application and the Environmental Impact Study.
The conclusions of the report are as follows:
1. Leakages of sewage from the proposed development pose a potential threat to ground water beneath this site and the wells tapping it. Therefore, the issue of ground water should have been considered in detail in the EIS.
2. Arklow and Wicklow failed to scope the project adequately with regard to ground water and soils (geology).
3. Both ignored EIS, planning legislation, guidelines, development plan and normal hydro geological practice in preparing and evaluating the planning application/EIS.
4. Wicklow did not have sufficient information (on geology and ground water) upon which to base a decision.
5. Wicklow should have requested additional information on ground water and soils (geology) from Arklow before making a decision.
6. The failure to include two caravan park wells, the Seabank house wells and the sea road housing well on maps and drawings in the EIS and planning application is a serious omission by both. The failure to refer to the aquifer is also a serious omission. Both failed to put or consider the Webs river and the national heritage area surface water on the maps.
7. It is generally not considered good practice to site waste water treatment works close to wells providing possible water supplies to a large number of people. In the absence of the detailed hydro geological data for this area the developer and the planning authority should not have placed the proposed sewage works within 300 metres of any bored well in the Seabank area.
8. There will be a risk of contamination of all twelve wells in Seabank and a particularly high risk of contamination of two caravan park wells, owing to their proximity to the sewage tanks and pipes of the proposed development.
9. The failure to address the potential impact of the proposed development on the well water quality in the area is completely unsatisfactory.
10. Both materially failed to comply with the provisions of the 1989 Regulations in respect of many important topics, other than water.
11. The planning application and the environmental impact statement materially contravene the provisions of the 1989 and the 1994 Regulations and the 1999 County Development Plan.
12. As Arklow does not have an interest in all the lands which constitute the site of the proposed development, its planning application is likely to be deemed void.
(This point was not argued by counsel for the applicant)
13. The decision of Wicklow on the 13th July, 1999 is null and void because it failed to comply with the material contravention procedures of the Planning Acts in relation to the development.
4.6 Applicant's second affidavit of 17th December, 1999.
Mr. Hynes, referring to Mr. O'Brien's statement that the applicant had been very aware at all times of how Wicklow dealt with the application, said that he had no discussion with either Wicklow or Arklow. The applicant did try to inform itself of the proposed plant but were obstructed by delays and refusals to give full sized copies of the drawings. The applicant was considerably obstructed in finding out what were the likely environmental affects of the proposed development. This was contrary to the provisions of the Environmental Impact Statement Regulations of 1989. Requests for additional information were either not answered or were answered incompletely in respect of alternative locations; details of the outfall pipe connection with the tunnel; method of access used for machinery to get to the beach; for two additional longitudinal cross-sections; details of previous predictions of odour levels proposed by Arklow's consultant, Aquavara Limited; the design of the primary sludge draw of chamber; providence of assumptions relating to estimated odour admission rates (Table 8.4); prominence of noise ratings for each piece of plant; prominence of noise attenuation figures.
Mr. Hynes said that he did not expect Wicklow to grant planning permission in July 1999 because the permission and the EIS were still materially, systematically and significantly lacking in information required by statute in spite of the revisions of May 1999. The application and the EIS did not contain all information required.
Mr. Hynes' affidavit deals in extensive detail with Mr. O'Brien's affidavit. In particular, Mr. Hynes quotes from Mr. O'Brien's affidavit and from his previous affidavit in relation to what Mr. Hynes believed to be a number of incorrect and materially misleading statements in respect of the applicant's position concerning the likely affects of the proposed development with regard to odours, noise and ground water. He said he believed and had been professionally advised that the information set out in the planning application and the Environmental Impact Statement together with the subsequent correspondence was so inadequate that no expert could reasonably be expected to prepare an accurate prediction and description of the odour affects of the development, based on such material.
A similar submission was made in relation to noise.
Mr. Hynes' second affidavit dealt extensively with ground water and aquifers. Mr. Hynes repeated his earlier affidavit and the relevant part of Mr. O'Brien's affidavit and submitted that the likely affects of the proposed development of the aquifer and board wells were ignored in both the original and revised planning applications and the Environmental Impact Statements. He referred to the report by Wardell Armstrong and the Daly Report and the geological survey or Ireland Ground Water Protection Scheme study defining the aquifer and part of the Seabank field as locally important with "moderately to highly vulnerable" ground water.
The reference to the Daly Report is, inter alia, a reference to sewers prone to subsidence and "(e) experience has also shown that virtually all structures crack and if these contain liquids, leakage occurs."
That report says that the EIS did not provide him with any discussion of the propensities of pipelines to leak, of joints between pipelines and vessels to leak, of leaks due to vessels cracking. Many of the adverse affects, the report continues, could be greatly reduced or eliminated if the proposed development were located to the west of the coast road or other location such as the harbour site or the IFI site.
Mr. Hynes cites the Daly Report as showing a risk of contamination of all twelve wells in Seabank and a particularly high risk of contamination of the two caravan park wells, owing to their proximity to the sewage tanks and pipes of the proposed development which wells, it is stated, serve a population equivalent in summer to a small town.
The twenty page affidavit continues with detailed reference to absence of information in the planning application and environmental impact statements, reference to materially incorrect and misleading statements in Mr. O'Brien's affidavit which, he was advised, materially contravenes the requirements of the 1989 Regulations. He refers to Wicklow's duty to examine the validity of the application and ensure that it complies with the Regulations. Reference was made to the probability that for many reasons the proposed development was in material contravention of the development plan.
Seventeen paragraphs are devoted to Mr. Quirke's affidavit (17 – 30). The applicant did not accept that the matters were properly before An Bord Pleanála. The applicant had objected to similar proposals in 1993 but does not understand how Arklow could have prepared an EIS for the proposed development in 1993 and in 1999 which failed to include a simple reference of any kind to the aquifer and to water supplies for both the caravan park and many residences nearby. Mr. Hynes believed that Arklow did not proceed with the construction of the sewage treatment plant because it was not permitted to construct a development which did not comply with the Urban Waste Water Treatment Regulations of 1994 and the Sludge Strategy Study.
Mr. Hynes believes that Mr. Quirke did not address the central theme of his first affidavit that the information provided in the EIS was materially and systematically inadequate and did not provide a basis for credible predictions of the likely affects of the proposed development. He believes it is usual to provide examples of the type of equipment which may be used to provide support for any noise affects predicted in the statement. Arklow, he says is materially in error because Wicklow is not legally empowered to waive material contraventions of statutory requirements.
In relation to the applicant's water supply from Arklow, Mr. Hynes says that all of the caravan park's water supply is provided by the bored wells and Seabank. The pipe connecting the caravan park to Arklow's water supply is, he says, "an historical connection which was not used because (Arklow) has problems especially during the summer months with water availability and quality for several years." (This matter was not raised in cross examination of the expert witnesses. There is no reference to correspondence or complaints with regard to the water supply from Arklow. It affirms "an historical connection" but does not say it was cut off. On the other hand Mr. Hynes says that "All of the caravans' water supply is provided by the bored wells in Seabank" and that it is "not used because of problems . . . for several years").
Ringsend waste water treatment plant is an ideal location as no ground water is at risk; Arklow is in the worst possible location being on top of an aquifer which is highly vulnerable to contamination. The Daly Report states that it is unsuitable and another site should be identified.
The application, Mr. Hynes repeats, materially and systematically failed to provide the information required by statute for 40 of the 43 structures within a development for which planning permission is required. Neither Wicklow nor Arklow was exempt or had authority to avoid such material contraventions or to waive statutory obligations.
The EIS did not contain any assessment of the affect of the construction of a tunnel beneath the sand dunes on the flora in the national heritage area.
In the final eight paragraphs Mr. Hynes deals with Mr. Ó Ruairc's affidavit saying that many of the opinions set out are incorrect and materially misleading, others are irrelevant, in error and/or misleading. The opinion that a developer usually proceeds with a project by the assignment of all responsibility to comply with planning conditions to a contractor by requiring the contractor to build whatever structure he prefers, as long as the structure complies with certain environmental performance standards, is based on a set of false assumptions.
The logical conclusion would be that the developers would only have to agree with the appropriate planning authority, the limits to the effects on the environment (such as noise, odour, water, amenity, and flora) which their project will not exceed and that the planning permission would be granted for such a planning application.
No information was available as to the effects of the construction or operation of the structures such as the outfall tunnel and pipeline.
Mr. Hynes says that Arklow erroneously claimed that the applicant's advisers, Wardell Armstrong, had not read or deliberately ignored the statements in the EIS providing for plans to lime stabilise the sludge in the event that the sludge centre at Arklow was not operational before the opening of the Arklow works.
(The Environmental Impact Statement had provided, at 3.6, in relation to sludge handling as follows:
"Provision is made in the layout of the works for a modification of the sludge skip to provide lime stabilisation of sludge, as included in the previous proposal. In the event of the sludge centre at Wicklow not being operational before the opening of the Arklow works, the pressed sludge skip can be modified to incorporate lime stabilisation of the sludge. This would ensure adequate sludge treatment and would facilitate its disposal.
Lime stabilisation involves the addition of either hydrated or slaked lime to liquid sludge or of quick lime to pressed sludge cake. The application of lime to pressed sludge reduces the moisture content significantly, leaving a relatively inert and odour-free product. The resultant material is particularly suited for landfill capping."
(copy this last paragraph to the ref. to Mr. Ó Ruairc's affidavit above)
The Wardell Armstrong report had stated:
"The 'provision made in the layout of the works' for lime stabilisation is not detailed, and therefore it is not clear whether it is part of the application or not. Indeed it is not clear how it could be accommodated."
Wardell Armstrong had concluded that the planning application did not incorporate provisions in the layout of the works for lime stabilisation of sludge contrary to the claims in the text of section 3.6 of the EIS.
[Is this a process – skips are not structures or is a new or revised planning application necessary?]
Mr. Ó Ruairc had stated that it was not proposed to disrupt any land flora or fauna outside the work site in the course of construction of the sea outfall using a "no dig" technique to avoid disruption. The applicant would not provide any facilities for temporary working areas or wayleaves for the proposed development because of the materially prejudicial nature to their interests of the proposed development.
Mr. Hynes referred to Mr. Ó Ruairc's statement that for reasons of prevailing wind from west and south west most of the sounds from the works are carried out to sea, away from the caravan park site and the most permanent residences. For that reason wind was not given weighty consideration in the EIS. Mr. Hynes says that this statement of Mr. Ó Ruairc makes it difficult to understand what reasons Arklow had for the statements made as to the accuracy of the noise studies.
In conclusion Mr. Hynes again repeats the failure to properly consider the application as being valid, to ensure that it complied with the mandatory provisions of the Regulations and of the development plan. The permission is in fundamental breach of the provisions of that plan and is fundamentally invalid and void.
4.7 Expert Affidavits Exhibiting Technical Reports
Over a year passed during which time issues of discovery were dealt with. In February of 2002 eight extensive affidavits were sworn by experts on behalf of the applicants. It is proposed to deal more extensively below with two of these which were the subject of more particular submissions. The eight experts were as follows:
Dr. Gary Hoyland, Divisional Director of Mott MacDonald Ltd. with 30 years experience working in environmental projects, (see 4.3.1 below)
Professor Franz-Bernd-Frachen, Head of the Department of Sanitary and Environmental Engineering at the University of Kessal, Germany, Chairman of the "Specialist Group on Odours and Volatile Omissions" of the International Water Association and Chairman of the Committee on "Omissions of Waste Water Facilities" at the German Association of Water, Waste Water and Waste.
John Bratherton, Chartered Engineer and Principal of Bratherton Park Design, a design service for caravan parks in the U.K., North America and France, who was previously with a large international firm of consultant engineers in the field of sewerage and water.
Nicholas Coppin, member of the Institute of Environmental Sciences, member of the Landscape Institute and a member of the Institute of Ecology and Environmental Management who was head of Wardell Armstrong's Environmental Services for fifteen years.
Eugene Daly, ground water, hydrological and environmental consultant who was commissioned together with Minerex Environmental Limited on behalf of the applicant to comment on the implications of the proposed sewage treatment plant for Arklow. (see 3.7 above)
Ann Mulcrone, Planning Consultant and Managing Partner of Reed Associates;
John Hobson, Technical specialist of WRc Plc., an independent research based consultancy dealing with water and environmental management problems. WRc is the UK National Centre for Environmental Toxicology. Mr. Hobson was the author of the first draft of the European Standard pr EN 12255 – 9 Waste Water Treatment Plants – part 9 Odour Control and Ventilations among other publications. He prepared an assessment of the likely effects on the environment due to odour emissions from the proposed Arklow works dated 13th June, 2001. That report concluded that for a number of reasons, the odour emission rate, of 501 ou/s, estimated in the EIS, was a very major under-estimate of that which is likely from the plant as proposed within the Arklow UDC applications.
Michael Bailey, Principal of the firm in Envirocon Ltd. who were commissioned on behalf of the applicant to comment on the implications of the proposed sewage treatment plant who is said and believed that an accurate "buffer zone" between such a sensitive receptor as the nearest house, public footpath, beach, golf course or other sensitive receptor had been a major factor in determining the location and process of sewage treatment to be carried out, to have been greater than 100 meters and stringent odour emission controls are applied to potentially odour resources within the plant. (see 4.3.2 below)
These affidavits are technically detailed, more appropriate to an appeal to Bord Pleanála than to a judicial review application.
It is proposed to deal with some of these at some length.
4.8 Dr. Hoyland's Affidavit.
Dr. Hoyland's 24 page affidavit containing 74 paragraphs, dealt extensively with the various reports and documents discovered. The affidavit would appear to relate to issues more appropriate to a planning appeal rather than an application for judicial review. In any event his conclusions are echoed in the grounding and supplemental affidavits of Mr. Hynes. The thrust of his affidavit would appear to relate to the decision rather than to the decision making process.
Dr. Hoyland referred to three reports received by Wicklow in relation to the application which was not made available to the public:
(a) P.H. McCarthy reports entitled "Review of Alternative Treatment Designs" of November 1998 and January 1999;
(b) P.H. McCarthy's report on the Department of the Environment's requirements for changes to Arklow's application of 15th January, 1999,
(c) Wicklow's request to Kilkenny County Council dated 5th July, 1999 for a report for a proposed Waterford City waste water treatment works in Co. Kilkenny (this was not referred to in the opening or during the trial).
Dr. Hoyland had prepared a report entitled "Septicity, Odour and Corrosion in proposed Arklow rising main" and a report on "Evaluation of Odour Remissions and Impacts", a review of constructability of outfall report together with a further report entitled alternative sites. Dr. Hoyland also referred to the "seabank aquifer vulnerability" report jointly prepared by Eugene Daly Associates and Minerex Environmental Ltd., the Mott McDonald and the joint report referred to as the "technical reviews" and the further Mott McDonald "review of discovery information report including the appendices thereto".
He referred to the 1998 measurement of odour in Greystones in the Bord na Móna report as being "slightly more elevated than those typically found in the fully functioning sewage treatment plant." The second odour audit in March 1999 was in relation to sedimentation tanks and an aeration irritation tank at a time when the plant was "under optimum operating conditions".
Dr. Hoyland referred to the Geological Survey of Ireland report on the aquifers in County Wicklow including ground water protection scheme, to information, including correspondence, in relation to the outfall pipe which could have involved the loss of an amenity beach and would have disturbed the Arklow sand dunes and in respect of which the European Commission became involved. Site investigations had been recommended by P.H. McCarthy and Partners. These were to have included drilling of a (geo-technical) borehole on the seashore above the high water mark and performing a geophysical survey on the Arklow sand dunes and beach along the alignment of the proposed outfall pipe reports from the Glover Site Investigations. It had advised that it was feasible to tunnel an outfall pipe under the Arklow sand dunes without disturbing them. Dr. Hoyland believed that the feasibility of the tunnel was based on the assumption that the pipe would be totally enclosed in gravelly sand. He believed that Arklow had not carried out the drilling of a bore hole on the seashore above the high water mark. The site investigations along the alignment were supervised at site by an Arklow employee with geotechnical experience. Dr. Hoyland said that the claim in the EIS that the technique would not disturb the sand dunes was not supported by any of the bore hole site investigations of the ground conditions underneath.
It is not necessary to consider Dr. Hoyland's analysis of discovery documents in relation to the Assistant County Manager's management responsibility for Arklow's projects which was dealt with extensively in the previous judgment in relation to bias.
Dr. Hoyland refers to the "evaluation and odour emission report" conclusion that the effects of the project indicate an average odour emission rate of 44,000 odour units per second equivalent to 88 times the estimate in the EIS. He believed the main odour sources to be the primary sedimentation tanks. The high odour emission rate would arise became of the sewage septicity in the 2.7 kilometre rising main conveying the sewage from the pumping station at North Quay in Arklow to the venting chamber near the works. Septicity in rising mains was a common problem that could be mathematically analysed. It was normally addressed so that, if necessary, appropriate control measures could be controlled in the EIS. Neither Arklow nor Wicklow considered that sewage would turn septic but did not address the implications of the septicity for odour nuisance. Septicity could be controlled by dosing chemicals to reduce the odour emission rates to 6,055 which could be higher in the summer months, particular on calm clear summer evenings.
In his opinion the EIS grossly underestimated the odour emission rate for all of the major odour sources.
Dr. Hoyland refers to the lack of apparent reason why Wicklow did not regard significant information in its possession regarding odour emission rates and odour sources at Greystones. He referred to the 4th March, 1999 memorandum of Mr. Harrington referring to the significant differences between odour emission rates measured at Greystones by Bord na Móna and those assumed in the EIS, the limited number of odour sources considered in the EIS and the recommendation for an odour expert to evaluate the findings in the EIS.
He says that the inquiry made by Wicklow of the professional credentials of the odour modeller did not include any questions about the validity of the odour emission rates used in the EIS. The design of the proposal did not include any special provisions to deal with slightly odour emissions to prevent the adverse impact of such emissions on the residential and recreational areas up to 500 meters from the proposed works.
He was of the opinion that no provision whatsoever was included in the proposed design to prevent discharges of effluent into the aquifer. Neither the application nor the EIS included any information whatsoever on the construction materials and methods of the proposed treatment structures to ensure that toxic compounds and passage ends would not leak, spill or otherwise discharge from the structures into the ground water.
Dr. Hoyland referred to an employee of Arklow seeking permission from the applicant to seek (geotechnical) trial pits on the seabank site who was told that bored wells on the site provided all the potable water to the applicant and that the digging of trial pits would contaminate the aquifer which supplies the water. The applicants could not therefore accede to his request. Arklow, accordingly, was aware from December 1998 that the applicants wells located beside the works supplied the applicant's potable water. This evidence was referred to by Mr. Jeremy Hynes in oral evidence.
Dr. Hoyland believed that the likely significant effects of the proposed development on the environment would include disturbance of the sand dunes which, he believed, could not be constructed along the proposed alignment. The public notice referred to an "outfall pipe laid by 'no dig' technique between the treatment works and the sea" even though the site investigations referred to previously had not been carried out to confirm the feasibility of the tunnel construction without disturbing the dunes.
The EIS did not contain information on whelk and seed mussel fisheries in the vicinity of the outfall pipe. It followed from the condition in the planning permission of the 13th July, 1999 requiring Arklow to carry out a survey on the fisheries that the protection of the fishery required consideration.
Dr. Hoyland concluded that on the basis of the technical reports and the relevant information that Arklow was obliged to include an EIS in the application but that the statement submitted materially contravened the 1989 Regulations in that it did not contain specified information, including:
(a) the data necessary to identify and assess the main effects which the development was likely to have had on the environment;
(b) a description of the likely significant effects, direct and indirect, on the environment of the development, including the effect on the sand dunes of constructing the tunnel under the dunes;
(c) the estimated type and quantity of the expected residues and emissions including pollutants of surface water, ground water, air, soil and substrata;
(d) the likely significant direct and indirect effects of the environment which may have resulted from the emissions of pollutants and;
(e) the forecasting methods used in the EIS to assess the likely significant effects on the environment due to odour emissions to atmosphere from the proposed development.
The application materially contravened the 1994 planning application regulations in not including particulars of the proposed development including specified drawings of structures. The EIS did not comply with the provisions of the Environmental Protection Agencies 1995 "Draft Guidelines for the information to be contained in an Environmental Impact Statements" nor with the provision of the 1998 "Advice Notes on Current Practices".
The development was in material contravention of the development plan because it contravened both the sustainable development policy of Wicklow and the development control objectives of the development plan relating to aquifer protection, zones of outstanding natural beauty, views of special amenity value and proposed natural heritage areas.
The application and the EIS did not comply with the provisions of section 39 of the Waste Management Act, 1996 insofar as the sludge produced would be disposed of at a landfill site.
Section 39 of the Waste Management Act, 1996 referred to by Dr. Hoyland (see 3.3.1 above) provides for the requirement to hold a waste licence. Leave was not granted by the court in respect of the Waste Management Act. Moreover it is clear that the Act refers to a licence rather than a planning procedure. While it does not apply to sewage and sewage effluent it does not exclude sludge from a facility for the treatment of sewage (section 3).
Section 40 deals with the grant of waste licences on application to the Environmental Protection Agency subject to detailed conditions as appropriate.
In any event, this objection does not seem to have been pursued by way of opening or argument at the hearing of the case.
Dr. Hoyland says and believes that the deficiencies in the application and the EIS were so extensive that even with the information such as the relevant information it would not have been possible to assess all the likely significant effects of the proposal on the environment without consulting experts.
Dr. Hoyland believed that the EIS submitted did not qualify as a valid statement required by the 1989 Regulations and that the application did not accordingly qualify as a valid planning application. The decision, he says, was materially flawed because Wicklow did not regard the relevant information as its possession. The argument submitted by Dr. Hoyland in relation to the consultation of experts needs to be examined at some length. It is clear that Arklow did employ P.H. McCarthy & Co. as experts who, in turn, employed other consultants such as Bord na Móna in relation to the Greystones project, together with its consultations with Professor Casey. Moreover Arklow had its own qualified assessors. It seems to me that a decision-making body is entitled to come to a decision within its own competence without the necessity of consulting with experts. If it deems it has not the competence then it would seem, by way of corollary, that it should seek the advice of consultants in such area. There is no evidence that there was any basis for such a decision. Mr Harrington's suggestion that Mr. Bailey of Envirocon Ltd. be consulted was not followed as it was too late. However desirable it may have been to evaluate and assess the suitability of the modelling procedure undertaken in the EIS in relation to odour impacts it was also a proper consideration that a decision had to be given within the two month period from the request for further information. Moreover the conditions in relation to odour emissions contained in the EIS where copper fastened by way of the conditions in the grant of planning permission of the 13th July, 1999 conditions 5, 12 and 14. The respondents are entitled to have regard to the principle of balancing optimum development at minimum cost.)
Dr. Hoyland referred to the ground water and bored wells at the aquifer and says that Wicklow did not include any questions relating to the applicants water supply.
Dr. Hoyland said that Wicklow did not require Arklow to provide justification for its claim that the tunnel could be constructed without disturbing the beach notwithstanding the non-compliance with the recommendation of P.H. McCarthy.
Wicklow did not pay sufficient regard to the EU Directives, statutory requirements, County Plan, Waste Management Act, DOELG, Ground Water Protection Scheme Guidelines, section 39 (d) of the 1976 Act applicable where the proposed development contravenes the County Development Plan, and, the ministerial policies set out in the 1997 DOELG at policy statement entitled "sustainable development – a strategy for Ireland".
Wicklow did not in its letter to Arklow dated 10th March, 1999 ask Arklow to respond to material information relating to the environmental impacts; did not seek independent advise for specifying the conditions issued with the planning permission.
The Seabank site was, Dr. Hoyland states, an area with high recreational and amenity value and exceptional coastal views suitable for walking, picnicking and bathing and a valuable asset to Arklow which would be severely reduced.
4.9 Michael Bailey's affidavit
Mr. Michael Bailey of Envirocon Ltd. was retained to evaluate and assess the suitability of the modelling procedure undertaken in the Environmental Impact Study, the adequacy of the information relating to odour impacts and the proximity of the proposed site to the applicants caravan park, the manner in which Wicklow considered the information available to it and the applicable provisions of the County Development Plan, regulations and directives as they related to the obligations of the respondents. Mr. Bailey said that an adequate "buffer zone" between such a sensitive receptor such as the nearest house, public footpath, beach or golf course and a proposed sewerage treatment plant as typically than greater than 100 metres with strict odour emission control supplied to prudentially odorous sources within the plant. He describes these. He says that the use of the coastal area immediately to the south of the site by the residents in the caravan park, particularly during summer, had not been addressed. In particular no consideration had been given to the inadequate buffer zone. He said that the odour dispersion modelling study presented in the EIS indicated that the total emissions from the proposed plant were much lower than would be expected based on experience with similar operating plants.
(Mr. Bailey did not give any statistics in relation to similar operating plants nor explain what he means by "significantly under predicted odour concentration levels outside the plant boundary".)
Mr. Bailey gives reasons why the emission rates used in the EIS dispersion model are very significantly inadequate and under predict odour concentration levels outside the plant boundary. These include the issue of septicity which, he said, was demonstrated conclusively by Water Research Centre (WRc Plc) and Mott McDonald which would be several orders of magnitude greater than the emissions predicted in the EIS. In his opinion the rates were unrealistic and were below observed rates at other sewerage treatment plants in Ireland. These issues were not addressed in the other impact assessment. He said that the design of Arklow was similar to that of Greystones Sewerage Treatment Plant which provided information which, he said demonstrated conclusively that the odour emission rates were inappropriate.
He said that the rates were not representative of the actual odour rates and effects which would occur when Arklow became operational. Accordingly, the EIS materially failed to comply with the requirements of Article 25 of the European Communities (Environmental Impact Assessment) Regulations, 1989 as amended.
Waste water treatment plants with a capacity greater than a 10,000 population equivalent as defined in Article 2.(6) of Directive 91/271/EEC are included in Part 2 of the First Schedule (those with a capacity greater than 150,000 population equivalent are included under Part 1 of the First Schedule. Both are regarded as development for the purpose of the regulations.
Article 23 provides that a State authority shall, before undertaking any development of a class set out in Part 1 and Part 2 of the First Schedule, or any development which would be of such a class but for not exceeding a quantity, area or other limits specified in relation to such class and in which the view of the State authority would be likely to have significant effects on the environment, prepare a statement of the likely effects on the environment of the proposed development containing the information specified under Article 25.
There would seem to be no distinction in relation to the obligations to provide information as between Part 1 and Part 2 of the First Schedule.
4.10 Desmond O'Brien's second affidavit of the 28th June, 2002.
Having referred to the above affidavits (eight in number) Mr. O'Brien addressed Mr. Daly's report on the impact of the project on the environment. (see 3.7 above)
Mr. O'Brien disagreed with Mr. Daly's assertion that Wicklow did not have regard to the County Development Plan designation of the vulnerable aquifer. The plan was based on the County Wicklow Ground Water Protection Scheme carried out by the Geological Survey of Ireland (GSI) for Wicklow with data from well drillers boring logs. The GSI extrapolated between various bore hole locations to provide a vulnerability map and so designated the aquifer underlying subject site as extremely vulnerable. That rating was based on subsoil permeability, type and thickness. Extreme vulnerability would have less than 3 metres of soil. The bore hole referred to in the EIS showed that there were 12 metres of clay interspersed with a small strata of 0.7 metres of silt overlying the aquifer. Accordingly the site would have a low vulnerability. That was the basis on which he was of the opinion that the risk posed was not significant. In addition he referred to the GIS description of the aquifer as generally unproductive, with local exceptions.
He believed that Mr. Daly appeared to assume there would be significant leaks. Mr. O'Brien believed the structures would be engineering designed, reinforce concrete structures which might contain hairline cracks which could allow extremely constrained level of leakages which would be far below that of a domestic effluent disposal system. The drawings submitted with the planning application were simple planning drawings and do not give design details of every interface between tank and pipe and pipe and manhole. Such matters were for the detailed design stage and are not relevant to planning. It was well within the balance of engineering capability to seal such interfaces.
Mr. Daly's reference to list 1 and list 2 substances does not relate to the concentration found in the raw sewerage in Arklow nor was there any assessment on the impact that this quantity of the substance would have had on the aquifer. It would hardly be relevant for minimum leakages.
Mr. O'Brien stated that at all times he had regard to the County Development Plan designation, to the Wicklow Ground Water Protection Scheme and to the thickness of the aquifer and also to the fact that Arklow Holiday Homes had a supply of bore holes. Given the minimum leakages that would come from the tank, coupled with the thickness of the clay layer and also the distance to the bore hole site, he concluded that there was no significant risk of contamination from the development.
Mr. Daly's assertion that, in the absence of detailed hydrological data, development should (not) be carried out within 300 metres of the source of a ground water supply was, he believed, extremely unreasonable because of the direction of the flow of the ground water from land to sea as is normal at the coastline. For this reason it was not considered that the impact of the development on the aquifer was significant. Accordingly no further information about this was sought in the request for further information dated the 10th March, 1999.
In relation to the "no dig" proposal for the outfall pipe beneath the dunes, Wicklow was of the opinion that reasonable information was submitted in the cross-section showing the dunes the sea level and the outfall pipe in the EIS and in the further information received as to how that would be achieved. The permission given was only on the basis of the development proposed. If that were not possible there would no permission for alternative techniques.
The EIS was, he said, in accordance with all of the regulations. Most of the matters complained of were matters of opinion as to whether impacts were adequately described or not. To his knowledge there was not any specific reference in the affidavits as to which parts of the regulations were not complied with.
Mr. O'Brien referred to a recurring theme in the affidavits regarding the absence of significant information. He said that the process for assessing a planning application was that the planning section sought reports from various relevant sections of the County Council who might be able to help in the assessment. It is unreasonable to expect that every single document in the possession of those sections should be copied and put on the Planning Department file. What was on the file was a reflection of the information available to those who are assessing the application, the Assistant County Manager, the County Engineer, the Assistant Planner and Mr. O'Brien himself, as County Planner. No further inquiries were made by Wicklow's experts beyond that.
In Mr. O'Brien's opinion the key impact of the development, the impact of odour on the surrounding lands and properties, was one in respect of which the planning authorities sought large amounts of further information. The underlying misconception is that the type of treatment in Arklow was the same as that in Greystones. The latter digests the sludge which is an anaerobic process that gives off gas. The Arklow project ties in with the County Sludge Strategy. Lime stabilisation was to be used in the event that the plant was built before the sludge strategy was decided - a totally different form of treatment to digestion and one which has far less odour risk.
The report from the environment section in relation to the odour unit rates in Arklow being under those measured in Greystones arrived too late to be considered, after the further information request had been sent to the applicant. Mr. O'Brien had difficulty reconciling the odour assessment and raised requests for further information. Mr. Harrington was subsequently satisfied that the unit rates of Arklow were acceptable based on further readings from Greystones taken by Bord na Móna which were considered by Mr. Harrington to be of the same order of magnitude. Mr. O'Brien referred to the benefit of experience. It would be unlikely that Arklow would go through the same teething troubles as Greystones. Wicklow had an odour report produced by very reputable consultants and had no reason to disagree with their findings.
The basis of inserting the condition in relation to Whelk Fisheries resulted from a conversation with Bord Iascaigh Mhara who advised that even if these were plotted during the survey stage they could have moved by the time the project was constructed.
Mr. O'Brien did not see the relevance of the Waste Management Act in a planning application. That would only apply to the physical operational plant and was not relevant to planning.
The applicants' submissions that the proposal materially contravenes the County Development Plan. Ms. Mulcrone had stated in paragraph 14 of her affidavit, that there were no development plan policies permitting the location of a waste water treatment plant within the town land of Seabank. She continued:
"There is an objective in the Development Plan for waste water treatment proposals for Arklow as provided for in table 4.6 but the objectives are not site locations specific and there are no policies outlined for the specific use of a site within the town land of Seabank in the said Development Plan."
Mr. O'Brien points out that paragraph 7.10 of appendix 7 entitled Sallymount/Johnstown encompassed the subject site.
Ms. Mulcrone was correct to say that there is no reference in table 4.6 of the Wicklow County Development Plan, 1999, to Sallymount/Johnstown. That table deals with waste water treatment proposals for towns and villages as is indicated on Map 36. However, she would appear to have ignored the provisions in Appendix 7: Coastal Zone Management Plan in respect of Sallymount/Johnstown where, as already referred to, at 7.10.3 it was policy to provide for and facilitate improved waste water treatment works for the Arklow Urban Area and Arklow Environs area in the Sallymount/Johnstown cell.
Mr. O'Brien said that Wicklow did require a visual impact assessment in the form of a long section from critical viewing points and on that basis granted permission conditional on having a planted area with indigenous shrubs and trees to preserve the visual quality. Further information was required on the noise and odour impacts. The zoning objectives of the area while standing natural beauty provides for development in accordance with the policies outlined for other land uses consistent with this landscaping zoning.
Mr. O'Brien accepted that condition 5 simply required that mitigation measures proposed in the EIS would be implemented rather than specifying performance criteria (that odour would not exceed limit values) at fixed locations but he believed that, while it would have been preferable to include a performance specification, this could have been dealt with adequately by An Bord Pleanála.
Arklow gave reasons why the particular site was chosen and why alternative sites considered were not as suitable. In Mr. O'Brien's view, those were reasonable conclusions. He accepted that the Arklow engineers had carried out a fairly intensive study of alternative sites and had reached conclusions other than those arrived at by Arklow. They were not taken into account by Wicklow as they were not made by the pre-decision stage. In Mr. O'Brien's opinion they were matters for An Bord Pleanála, if put before it. He did not think it consistent for a public project to have to undergo a more rigorous assessment than a private project, when assessed under the same legislation.
Mr. O'Brien had submitted that it seemed inconsistent to him for a public project to have to undergo a more rigorous assessment than a private project in relation to alternative sites. However it would seem that the obligation of a public authority is governed by Section 23 of the European Community (Environmental Impact Assessment) Regulations, 1989, Second Schedule, 1 – (d) in relation to information to be contained and again an Environmental Impact Statement to include "an outline of the main alternative studied by the developer and an indication of the main reasons for his choice, taking into account the environmental effects".
Mr. O'Brien believed that Arklow's conclusions with regard to the suitability of the site was reasonable and that the requirements of the EIS regulations had been satisfied notwithstanding that Arklow's engineers had, after the pre-decision stage, reached conclusions other than those arrived at by Arklow itself.
4.11 The second affidavit of Seosamh Ó Ruairc
On the 27th June, 2002 Mr. Ó Ruairc, director and partner of P.H. McCarthy, consultants to Arklow, referred to the expert affidavits prepared on behalf of the applicants and dealt with headings of septicity, odour, outfall pipe, planning, waste management, aquifer protection EIS and EIA adequacy, alternative sites, investigation of the seed mussel beds, and waste management as follows:
Septicity: provision had been made by the venting of the rising main at its highest point and for odour removal from vented gases.
Odour: The new enlarged and improved waste water treatment works constructed in Ireland and in the European Union on foot of the Directive 91/271/EEC form a proper basis for comparison. Problems at Greystones occurred in 2000 and are no longer a problem. Arklow, unlike Greystones, does not include digestion. Ringsend, approximately a hundred times bigger and having extensive sludge drying and digestion plant has less odour predictability than that predicted (by the Applicant). Odour can be controlled both effectively and efficiently within the new works.
Outfall: given the sensitivity and continuing existence of the action against Ireland by the European Commission, Arklow had refrained from concluding any intrusive investigations which might be construed as challenging that action. The outcome of the applicant's investigation displayed a high degree of consistency with that of Arklow. The suggestion that a "no dig" solution would not work is inconsistent with Arklow's studies. The ingenuity globally applied to the resolution of engineering problems was also ignored.
Planning: The application in January 1999 by Arklow and the grant of planning was in accordance with proper planning and development.
Aquifer protection and waste management: The Arklow holiday site was located in the town's water supply area. A public supply was available. Waste water was not intended to be discharged into the ground water but to be discharged as treated effluent to the sea by way of adequate head to allow a flushing discharge. The outfall chamber was to be a storage structure and any discharges of treated effluent from the chamber would be highly unlikely and accidental in nature.
EIS and EIA adequacy: A large number of such statements had been prepared in relation to the provision of waste water works, many carried out by P.H. McCarthy and Partners and certified by local authorities Government Departments and An Bord Pleanála which informed the nature and content of the present EIS.
Alternative sites: Arklow had no basis for considering any alternative site given that it had completed the compulsory purchase order process that confirmed the Seabank site. Moreover, he believed that the element of the directive relating to alternatives was not compulsory.
Mr. Ó Ruairc, consultant to Arklow, had referred to many elements of the directive being compulsory in para. 18 of his affidavit. That relating to alternatives was not.
Investigation of seed mussel beds: Mr. Ó Ruairc referred to continual correspondence between the Department of the Marine on foot of an original permission and in relation to the application for a foreshore licence. He says that the Department had indicated no particular issue with regard to the outfall and any potential seed beds until such time as the pipeline was to be excavated.
Waste Management: Finally, in relation to waste management, Mr. Ó Ruairc said that the treatment of sludge would have been dealt with under the county sludge treatment plant. The sludge from Arklow would be taken to Wicklow for treatment by persons/hauliers who had the relevant permit licence. There was no onus on Arklow to develop a sludge management policy of its own. From the 1st January, 2004 Arklow's Sanitary Services would transfer to Wicklow.
Arklow complied with all its statutory requirements both in the preparation of the EIS and in furnishing sufficient documentation to Wicklow to enable them to arrive at a valid decision. In Arklow's view the permission was in accordance with the proper planning and development of the area.
5. Arklow's submissions
5.1 Material Breach of the Development Plan.
The applicants alleged that the decision to place a waste water treatment plant on the subject site at Seabank, Arklow was in breach of both the policy objectives and development control objectives of the Development Plan. Specifically they say it was a breach of policy and development control objectives of the Development Plan. It is significant, however, on the map prepared by the applicants relating to the Wicklow County Development Plan objectives for the coastal cell at Sallymount/Johnstown, that no reference is made to the specific objective in the County Development Plan to develop a waste water treatment plant in the area of Seabank, 7.10.(3) of which specifically provides at part 3 thereof as follows:-
7.10.(3)
"To provide for and facilitate improved waste water treatment works for the Arklow Urban Area and Arklow environs area."
The said objectives appear to be in conflict with the prohibition of development on the sand dunes area. However the insertion of the objective to develop the waste water treatment facility is clearly in the knowledge of that prohibition. Therefore, both logically and practically it was clear to the councillors when adopting the County Development Plan that intrusion in this area for this purpose was being authorised and promoted. It was submitted that a balance needed to be struck between the competing objectives.
In accordance with section 22(1) of the Local Government (Planning and Development) Act, 1963 the planning authority are mandated to secure the objectives in the plan. It is clear that it was intended that the development of a waste water treatment works in this area is an objective to be undertaken in accordance with the statutory duty of the planning authority. The decision in Wicklow Heritage Trust Limited v. Wicklow County Council, Unreported judgment of McGuinness J. dated the 5th February, 1998 is clearly distinguishable in this regard. It is clear from p. 36 of the judgment of McGuinness J. which recites the different objectives in the Wicklow County Development Plan that no provision was made in the Ballinagran area for a waste disposal facility.
This contrasts starkly with the position in this case where a specific objective is set out in the plan to provide this facility within this area.
The applicants reply on the prohibition in paragraph 3.4.4 in the Plan. It provides:
"the Council will protect both public and private investments by prohibiting any new building or development (including caravans and temporary dwellings) within 50 metres of the 'soft shorelines' as defined by maps 10 and 11 (pages 124-125)".
It was submitted that the applicants in interpreting this provision had adopted a too restrictive and legalistic approach. It is intended to prevent the waste of public and private investment on any type of development that might be vulnerable to destruction due to coastal erosion, rather than blanket prohibition of any type of development. The danger of too restrictive and analytical interpretation of planning documents was warned against by McCarthy J. in Re XJS Investments Limited (1986) I.R. 750 by McCarthy J. at 756:
"Certain principles may be stated in respect of the true construction of planning documents . . .
b) They are to be construed in their ordinary meaning as it would be understood by members of the public without legal training as well as developers and their agents, unless such documents, read as a whole, necessarily indicate some other meaning."
The members of Wicklow were aware of this prohibition when they inserted the specific objective to develop a waste water facility in this area, particularly where, in order to operate such a facility, a discharge to sea would be required.
It was submitted that any member of the public approaching the development plan, and considering same as a whole, could not but conclude that an important objective in the plan provided for the development of a waste water treatment plant for the Arklow environs. (para. 4.5 and table 4.6). Furthermore the same person would see that in order to promote that objective it is provided that the works will be sited in the coastal strip between Ballytunny and Porters Bridge, which includes Seabank. Therefore, it is submitted, as the development is in accordance with the objectives in the Development Plan and therefore could not be in material breach of the said plan.
5.2. Deficiency in the Environmental Impact Statement
The applicants claimed that the Environmental Impact Statement makes no reference to ground water. The case made on behalf of the applicants is not that there is insufficient material in the E.I.S. relating to ground water, but that there is no information relating thereto.
Section 16 of the E.I.S., filed on the 14th May, 1999, dealt with the soil as a receiving environment. It set out the subsoil conditions at the treatment works and that the ground is generally firm to stiff gravely, silty clay overlying bedrock to a depth of approximately 14.8 meters. It also confirmed that arising from the boreholes carried out in the sea that the profile of the underlying conditions mirrored those found at borehole 11. This was supported by seismic surveys on land and below the water.
In relation to impact on the aquifer, the replying affidavit of Desmond O'Brien, sworn 25th November, 1999 page 46 stated: "However, the depth of clay overburden over the aquifer suggests that there would be no such impact."
Eugene Daly's affidavit dealing with the ground water and sworn on the 21st February, 2002, did not take issue with the statement of Mr. O'Brien. Furthermore, Mr. Daly exhibits a report by Minerex Environmental Limited of the 6th February, 2002. At paragraph 2 thereof, on page 2, it notes that permission was sought by Arklow Urban District Council to drill boreholes and sink five trial pits on the lands of the applicant. The applicants refused to allow this to be done and complain that sufficient regard had not been taken to any possible effect on their wells and that sufficient investigation of the ground conditions was not carried out.
Paragraph 3.3 of the said report confirmed that a seismic survey along the 106 meter line of the alignment of the proposed outfall pipeline, agreed favourably with the overburden thickness shown in the borehole number 11. And it further confirmed that the proximity of the borehole permitted the calibration of the seismic results.
It was submitted that paragraph 3.3.2 confirms that the ground probing radar survey in the vicinity of the sand-dune (beach) limited penetration to three metres due to the presence of conductive seawater. Contrary to the assertion made in the opening on behalf of the applicants that seismic surveys were inconclusive, this is clearly shown to be incorrect in that the applicants' own report confirms at paragraph 3.3.1 that the seismic results bore out the readings in borehole 11 on the land side. Furthermore paragraph 3.5 confirms that the Minerex investigations confirmed the Glover report relating to the rock. The signal failure, in part of the seismic surveys, is at or beside the water mark, and did not alter the combined results from borehole 11 and the seismic surveys, of the landward conditions.
Paragraph 4.3 of the said Minerex report complained of lack of specification, plans and sections for structures. The conclusions in the Minerex report are wide ranging. However, no analysis is made, no opinion is offered and no judgment made which contradicts the view expressed by Desmond O'Brien in his affidavit on the 25th November, 1999.
The affidavit of Nicholas Coppin, sworn on behalf of the applicants on the 20th February, 2002 stated:
"From the limited information provided by Arklow U.D.C. it appears that the W.W.T.W. is a conventional design, typical of such installations. Such works are usually constructed to be as watertight as possible and typically have sumps to collect leakage from those stages where this might typically occur,. There are testing procedures during commissioning to confirm that there are no major leaks."
Mr. Coppin accepted that the contractor, constructing the works, would require to install equipment that conforms to specific environmental performance. He also accepts therein that the design parameters and objectives are set out. He takes issue with the level of detail and offers the view that though designed and built to be watertight, testing procedures do not guarantee no leaks over time.
The applicant asserted in relation to this issue that in considering the planning application, the planning authority had no information in relation to the ground conditions. Accordingly, the decision was irrational. In order to sustain this claim the applicant must demonstrate to the court that at the time of consideration of the planning application, the planning authority had no relevant material before it to make an assessment in relation to this issue. The applicants have asserted that not alone did the planning authority have no relevant material before it, but there was no material in the E.I.S. dealing with the ground conditions. This, it was submitted, had been demonstrated to be factually incorrect in that paragraph 16 refers to the Glover site investigations.
5.3 Failure to Comply with Regulations
The applicant makes the case that the developer in submitting the application for permission to Wicklow County Council failed to comply with the requirements of articles 19 and 23 of the Local Government (Planning and Development) Regulations, 1994. It should be noted that no case was made at the leave stage alleging a failure with regard to compliance with article 19 of the Regulations. No leave was granted in respect of this claim. It is submitted that the applicant in these proceedings is prohibited from making such a case. It is further submitted that as in the argument relating to bias, the fact that article 19 is put in issue in the points of claim does not avail the applicants. The applicants are confined to the grounds upon which leave was granted. Those grounds may not be expanded upon by the points of claim. See McCormack v. Garda Síochána Complaints Board, [1997] 2 IR 489 at pp. 503/4.
Without prejudice to same, in accordance with the said Regulations, it is a matter for the planning authority to assess whether the Regulations have been complied with. See in this regard Greaney v. Dublin Corporation, [1994] I.R. 384, and Browne v. an Bord Pleanála, [1989] I.L.R.M. 865.
Section 26 of the Local Government (Planning and Development) Act, 1963 provides the legal authority for the granting or refusal of a planning permission. It provides as follows:
Section 26(1)
"Where:-
a) Application is made to a planning authority in accordance with permission regulations for permission for development of land or for an approval required by such regulations, and
b) Any requirements relating to the application of or made under such regulations are complied with,
The authority may decide to grant the permission or approval subject to or without conditions or to refuse it:"
It is therefore a prerequisite that the application must comply with the regulations. It is clearly implicit that an adjudication must be carried out as to whether the application complies with the Regulations in the first place. The body empowered to make that adjudication is the planning authority. (See Browne v. an Bord Pleanála above)
Article 19 requires four copies of the plans and such other particulars:-
"As are necessary to describe the works or structure to which the application relates."
Such plans were lodged with the planning application. Article 23 requires more detailed drawings on a scale of not less than 1/500. It is submitted that such plans were lodged.
The test to be applied in assessing whether the application complies with the statutory requirements and the regulations made thereunder is that as set down in Ni Eili v. The Environmental Protection Agency, (6th May, 1997). Part of the case made by the applicant in those proceedings was that sufficient details of the incinerator proposed to be developed were not submitted. The court was satisfied that what was required was sufficient detail to enable a person to understand the process, and that insofar as any residual concerns existed with regard to the ability of the process and equipment utilised might not achieve requisite standards, the imposition of conditions setting limits to be achieved. The court found this to be acceptable.
In the instant case applying the test, we know that Mr. Coppin when he looked at the application in 1999, understood exactly what the process was. He described it is his report, already referred to above, as "a conventional design, typical of such installations". He goes on to say that such works are usually constructed to be as watertight as possible. Therefore it is clear that Mr. Coppin understood both the concept and the standard to which the works would be constructed. Therefore the documents lodged fulfilled the necessary function of describing to a person looking at them what the process was, what type of equipment would be required to achieve the necessary standards and the type of construction required to achieve those standards. This clearly passes the first test set down by Murphy J. in Ni Eili.
The second test as to whether sufficient conditions have been imposed to allay any residual fears that persons might have in relation to achieving the necessary standard. Condition 4 of the permission requires that the noise levels as provided for in the Environmental Impact Statement be not exceeded. Condition 5 requires that the emission rates in respect of odour in the E.I.S. be not exceeded.
Therefore Arklow submitted the second test as set out by Murphy J. in Ni Eili has been complied with.
It is therefore submitted that in the first instance it is a matter for the planning authority to adjudicate as to whether the requirements of the Regulations have been complied with. That assessment was carried out and the planning authority was satisfied that the provisions of the Regulations had been complied with. Secondly, even if the court were to take on the role of assessing the adequacy of the documents in the context of articles 19 and 23 of the Regulations it is quite clear that the particulars necessary to describe the works or structures to which the application relates was given and Mr. Coppin understood exactly what was proposed. Therefore both the spirit and letter of the Regulations have been complied with. See the observation of McCarthy J. in Re XJS Investments Limited, (1986) I.R. 750 referred to above. (para. 1.6)
This applies equally to the plans and drawings. The objective of the Regulations and the requirements in respect of plans and drawings is to put the public on notice, as well as the planning authority, as to what is proposed. They are not designed to be, and never are, the detailed design specification and plans to be used in the actual construction of the development. They are required to give a true understanding of what is proposed and how the proposal will operate. It is submitted that this has been fully complied with in the present case.
5.4. The "No Dig Solution"
The applicants make the case that the "no dig solution" proposed in respect of the development of the outfall pipe from the works to the sea, gives rise to concerns with regard to the effect the said works may have on the dune complex. This complaint is based on the alleged lack of information with regard to the ground conditions. This ground of attack is predicated on the belief that arising out of the recommendations made by P.H. McCarthy and Partners, Arklow's consultants, in 1996 that two land based trial holes should have been carried out instead of one, at borehole 11. It is alleged that thereafter no explanation is given as to why that recommendation was departed from. It is clear, however, from reading the documentation presented by the applicants in the folder described "Tunnelling Number 2", that at the time of the carrying out of the land and sea surveys it was decided that rather than carry out a
second borehole on land at the dunes or on the beach, to carry out a sea based borehole as close to the land as possible. This is referred to in the memos of Breege Kilkenny dated the 6th September, 1996 and 12th September, 1996. These are headed 'conversation record' at tab. 16. In the memo of the 6th September she refers to the land based borehole on high ground and that the "first be close to the land as possible".
It is further alleged that the seismic surveys that were carried out, in addition to the borehole at number 11, were inconclusive due to the presence of salt water. This is an incorrect interpretation of the evidence. This has been clearly confirmed by reference to the Minerex report, presented by the applicants in this case, which clearly confirms that the seismic surveys on the land confirmed the profile of the ground conditions as is evidenced through borehole 11. (See paragraphs 2.5 and 2.6 above.)
P.H. McCarthy were satisfied with the level of information presented to make an assessment of the ground conditions through which the drilling would take place. This is confirmed in the letter of P.H. McCarthy to the Town Clerk referred to a tab 18 in the said folder entitled 'Tunnelling Number 2' presented by the applicants. At paragraph 3 of the said letter P.H. McCarthy, dated 19-11-1996, recommended to the Town Clerk that the 'no dig' method could work. Clearly P.H. McCarthy were satisfied from the evidence produced from borehole 11 combined with the seismic surveys on land, the evidence from the nine boreholes at sea and the seismic surveys carried out in addition thereto, that a sufficient profile from borehole 11 to the outfall was available, and they made their judgment based on that evidence. They communicated that to the Town Clerk.
It is significant to note that in the report of Minerex, commissioned by the applicants to review the evidence relating to the ground conditions, that no statement is contained therein to say that the 'no dig solution' as proposed by P.H. McCarthy in the within application will not work. The report certainly expresses concerns in relation thereto, but the developer in this case, Arklow Urban District Council, had the advice of P.H. McCarthy that they were satisfied that the solution would work. In addition thereto, the evidence in relation to the proposal of a 'no dig solution' was presented with the planning documents and was accepted by the planning authority.
The test in relation to this issue was set down in SIAC Construction Limited v. Mayo County Council, Laffoy J. unreported 17-6-1997 and confirmed on appeal by the Supreme Court. See also Greaney v. Dublin Corporation above. It is not for the court to adjudicate as to the conflicting views of experts as to what the proper solution is. The test is as to whether the developer at the time the application was made was entitled to rely on the advice given by P.H. McCarthy. In addition thereto the test is as to whether the planning authority when adjudicating on the planning application had sufficient relevant material before it to make a decision in relation to the 'No Dig Solution'. It is submitted that on both counts sufficient relevant material was before the developer and the planning authority to arrive at a decision to accept the 'No Dig Solution'.
5.5 Arklow's legal submissions
Arklow says that the applicants sought to quash the decision of Wicklow to grant Arklow planning permission. The grounds upon which the relief are sought resolve into four issues:
- Failure to comply with the requirements of s. 39 (d) of the 1976 Act and failure to take into account that the development did not comply with the County Development Plan;
- failure to comply with Article 23 (1) of the Regulations of 1994 which deprive the applicant of its right to consider the effects of the development and protect its property rights and that Arklow misled Wicklow by failing to provide it with all the information which was relevant and thereby deprived Wicklow of the opportunity to properly assess the development;
- that Wicklow failed to comply with the provisions of Article 3 of the Environmental Impact Assessment Regulations of 1989 and with the EEC Directive 85/337/EEC;
- that Wicklow had failed to comply with Articles 15 and 16 of the Regulations of 1994 in that the public notice failed to disclose the entire nature and extent of the proposed development and failed to afford the applicant a full and informed opportunity to consider the effects of the development and protect their constitutional property rights.
In relation to the first issue, Arklow acknowledges that this is a matter for the court and refers to O'Leary v. Dublin County Council; Tennyson v. Dun Laoghaire and Wicklow Heritage Trust Ltd. v. Wicklow.
In relation to the second issue, Arklow says that from the outset it contended with the proper form to deal with all of the issues, going into the merits of the planning application, is An Bord Pleanála and so refers in paragraph 3 of the affidavit of Mr. Sean Quirke, the Town Clerk, on the 24th November, 1999. Arklow relies on the authority of K. v. An Bord Pleanála (No. 1) [2001] 1 IR 565 at 578. McKechnie J. stated at para. 19:
"Once the statutory requirements have been satisfied I should not concern myself with the qualitative nature of the Environmental Impact Study or the debate on it had before the inspector. These are not matters of concern to this court. The fourth notice party and the respondent, as these bodies must under the Regulations, were satisfied as to the Environmental Impact Statement, with the inspector and the respondent also being satisfied with the evidence produced at the oral hearing. That, in my view, concludes the matter."
Reference was also made to Greaney & Ors. v. Dublin Corporation, regarding the fire safety certificate, where Mr. Justice Morris, having set out the principles governing the function of the court in the consideration of issues and like cases adapted the dicta of the Supreme Court in The State (Keegan) v. Stardust Compensation Tribunal and O'Keeffe v. An Bord Pleanála where he stated at p. 8:
"I believe that the respondents acting in their capacity of building control authority for the City of Dublin must be permitted to formulate the manner in which they consider that they are required to carry out their statutory functions and obligations from the point of view of the quality of the work submitted to them in support of such an application."
Morris J. continued at p. 9:
"It is irrelevant insofar as this case is concerned, that another expert dealing with the same set of papers might come to a different decision".
See also S.I.A.C. v. Mayo Co. Co., Unreported decision of Laffoy J. of the 17th June, 1997.
The second named respondent had said that, in the present proceedings, the applicants had, by placing before the court a multiplicity of expert opinion on affidavit, attempted to make the case that the documentation placed before the planning authority was inadequate.
The applicants had said that Arklow U.D.C. failed in its obligations under the regulations to supply all the information necessary. They misled the planning authority in that regard.
The case was also made that the planning authority was not in a position to deal properly with the application as it did not have all the requisite material.
This appeared to be particularly so in the argument relating to the documents which, the applicants allege, were not before the planning authority.
As a result of a discovery process the applicant identified eight documents which, it was alleged, ought to have been on the planning file. Arklow says that none was prepared for nor formed part of the planning application. Article 36 of the Local Government (Planning and Development) Regulations, 1994 requires that such documents received or obtained by the planning authority in relation to a planning application need to be made available for inspection by the public. Arklow says that it had not been demonstrated by the applicants why the documents were required or necessary. Moreover, the applicants never sought leave, nor were granted leave to challenge the decision of the planning authority on the grounds of a breach of article 36 of the Regulations.
The complaint was that drawings, in the main plan elevation and sections, were omitted in relation to twelve structures as follows:
Odour removal building (No. 13 on plan 004): Mr. Desmond O'Brien, the planning officer of Wicklow said that he had sought information which, when it was not received, he recommended that it would be dealt with by way of condition in the planning permission eventually granted.
He was satisfied that they knew the height of the building above ground.
The second alleged omission that of the inlet works and screens, he was satisfied that this was below ground level and, accordingly, not significant from a planning viewpoint.
The third alleged omission related to the grit remover which, Mr. O'Brien says, was a proprietary item. Machinery was not normally a matter for planning unless it exceeded a certain noise level. He did not have to concern himself with the detail. Moreover, that further specification might present problems in relation to public procurement in relation to which he had also working knowledge but would not be an expert.
The fourth document, also related to a proprietary item.
The fifth matter, the primary flow splitter, he believed, could take various configurations. It would not have made a tremendous amount of difference which configuration was detailed.
The primary sedimentation tank separated solids from liquids. The dimensions were clear though it did lack a measurement with regard to reinforced concrete structure which he believed was not all that relevant. He was aware of the height of the stub wall. The mechanism was not relevant to planning permission.
The seventh item, aeration basins, which allegedly had been omitted from the plans, was referred to in the EIS. He had not knowledge of how it worked. The only matter lacking was that of the thickness of the walls. The same lack was evident in the eighth matter, that of secondary sediment tanks. He was satisfied in relation to both of these items.
Both sludge thickener facilities were round tanks with some plant inside had no visual impact. The technology was known. Further drawings would not have told him any more than what he already had.
The flushing chamber, the eleventh drawing allegedly omitted, was the head above the shaft, which had no planning significance.
In relation to the last drawing allegedly omitted, the tunnel, Mr. O'Brien believed that this was basically a pipe and was not a structure in the same sense as the other matters.
All of these twelve items were included on drawing 003 to show the hydrological flow from inlet to outfall. Mr. O'Brien was satisfied, subject to the above reservations, that that drawing provided a plan and an elevation for these items. He was further satisfied that the conditions appended to the notification of the decision of the 13th July, 1999, Nos. 1 and 13 gave him further comfort.
Arklow referred to the first condition of the grant:
"Development shall be carried out, completed and maintained in accordance with the complete application documents lodged including the recommendation conditions in the environmental impact statement, as revised by the documents submitted on the 14th May, 1999 and on the 8th July 1999, save as the conditions hereunder otherwise required."
"5. The Recommended mitigation measures in relation to odour under section 8.5 of the Environmental Impact Statement shall be implemented in full and the stated emission rates shall not be exceeded. Odours shall be monitored by an independent specialist, acceptable to the planning authority, at the three environmental impact statement sites referred to in condition No. 4 above, within three months of the plant being commissioned and there afterwards required by the planning authority."
"13. Plans and elevations of the odour treatment building shall be submitted to and agreed acceptable in writing by the planning authority BEFORE DEVELOPMENT COMMENCES. The footprint of the building shall be in keeping with that indicated on the site layout etc."
"14. Any change to the treatment process proposed in this application shall require the agreement of Wicklow County Council and shall produce an effluent to at least the same standard as this proposal. Odour and noise characteristics of any such proposal shall be to the same or better standard as this present proposal. Visual impact of any such changes shall be similar to the present proposal and require agreement of Wicklow County Council."
The role of the court, in a judicial review application, is to assess the reasonableness of a decision taken. A decision can only be successfully reviewed if the decision making authority had no evidence upon which to base its decision. In O'Keeffe Finlay C.J. stated:
"I am satisfied that an order for an applicant for judicial review to satisfy a court that the decision making authority has acted irrationally in the sense which I have outlined so that the court can intervene and quash its decision, it is necessary that the applicant should establish to the satisfaction of the court that the decision making authority had before it no relevant material which would support its decision." (1993) 1 I.R. 39 at 72.
It would seem to follow that the effect of this no relevant material rule is that, irrespective of the weight of evidence justifying a different decision, a decision maker is entitled to come to a decision if there is evidence to support it. Judicial review, in the context of separation of powers is not an appeal of the decision but a review of how the decision was made. It cannot be an interference with the executive powers of the administration, much less can it be the anxious scrutiny ex post factum.
Morris J., in Greaney, held that the view of experts as to what they would or would not have required to be included is irrelevant. Equally the view of another expert, that he would have arrived at a different conclusion as to the adequacy of the material put forward and considered is also irrelevant. (see also McKechnie J. in Kenny v. An Bord Pleanála (No. 1) [2001] 1 IR 565 at 578:
"Once the statutory requirements have been satisfied I should not concern myself with the qualitative nature of the environmental impact study or the debate on it before the inspector. These are not matters of concern to this court. The fourth notice party and the respondent, as these bodies must under the regulations, were satisfied as to the environmental impact statement, with the inspector and the respondent also being satisfied with the evidence, both documentary and oral, produced at the oral hearing. That in my view, concludes the matter."
The scope and extent of the inquiry in this application is limited to inquiring as to the procedural propriety of the actions of the respondents rather than an inquiry into the qualitative substance of the application. The latter is a matter which the legislature has placed within the jurisdiction of the planning authorities in the first instance and Bord Pleanála on appeal as has been stated in O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 at 71.
Indeed the extent of the expert evidence in the extensive affidavits and exhibits are matters which, of course, could have been argued before, and adjudicated by, An Bord Pleanála.
6. Decision of the Court
6.1 Unreasonableness
This is an application for judicial review on extensive grounds, inter alia, of unreasonableness.
Henchy J., in The State (Keegan) v. The Stardust Victims' Compensation Tribunal (1986) I.R. 642 at 658 stated:
"I would myself consider that the test of unreasonableness or irrationality in judicial review lies in considering whether the impugned decision plainly and unambiguously flies in the face of fundamental reason and common sense. If it does, then the decision maker should be held to have acted ultra vires, for the necessarily implied constitutional limitation of jurisdiction in all decision making which affects rights or duties required, inter alia, that the decision maker must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision."
The Wednesbury Principle (1947) 2 All ER 680 at 685 that the courts are confined to considering the decision "with a view to seeing whether it has taken into account matters which it ought not to take into account, or conversely, has refused to take into account or neglected to take into account, matters which it ought to take into account" is still relevant.
There would not seem to be any support for a wider application of the more exacting "anxious scrutiny" test and judicial review of human rights issues. In Bugdaycay (1987) 1 All ER 940 at 952, Lord Bridge of Harwich said:
"The limitations on the scope of (the Courts power of review) were well known and need not be restated here. Within these limitations, the Court must, I think, be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines. The most fundamental of all human rights is the individual's right to life and, where an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely cause for the most anxious scrutiny."
That decision itself considered the anxious scrutiny test to fall within the Wednesbury principles (see Lord Bridge at 952).
The test for judicial review adopted by the community courts was that of "manifest" error which was not to be equated with that of plainly and unambiguously flying in the face of fundamental reason or common sense. In SIAC Construction Limited v County Council of Mayo (2002) 3 IR 148 at 174 Fennelly J., giving the judgment of the Supreme Court, at 173 stated:
"Counsel for the respondent, in supporting the standard of Judicial Review enunciated by the Trial Judge, cited the decision of the European Court of First Instance in Adia Inturim v Commission (Case T – 19/95) [1996] ECR II – 321. This is one of a series of cases in which the Court of First Instance has ruled on the standard of review that it will itself apply in the performance of its functions under Article 230 EU (formerly Article 173 of the Treaty of Rome) to review the legality of decisions of the Community Institutions. The same general principles apply to those institutions as are applied to the Member States by the public procurement directives, transparency, equality and objectivity. That Court, in AICS v Parliament (Case T – 139/99) [2000] ECR II – 2849 ruled on a complaint regarding the manner in which the European Parliament awarded a public service contract for the supply of passenger transport at the Parliament's premises at Strasbourg. The procedure was governed by the Services Directive (Counsel Directive 92/50/EEC of the 18th June, 1992). The following principles laid down in the judgment (para. 39):
'Like the other institutions, the Parliament has a wide discretion in assessing the factors to be taken into account for the purpose of deciding to award a contract following an invitation to tender and the Court's review should be limited to checking that there has been no serious or manifest error…'
Thus, it seems to be well established by a significant line of case law in the Court of First Instance that a Community Institution, when in a comparable situation to the awarding authority of a Member State, enjoys 'a wide discretion' as to the criteria by which a judges tenders and moreover, its decisions will be annulled only if a 'manifest error' can be demonstrated.
It is not conceivable that the Courts of the Member States are required to apply a different standard of Judicial Review to their own awarding authorities. This emerged clearly from a reading of the other decision upon which counsel for the respondent placed reliance, even if that case, Upjohn v. Licensing Authority (Case C – 120/97) [1990] ECR I-223 established by the Medicines Act, 1968, did not concern public procurement."
A more succinct summary of the common elements of any system of judicial review is found at 175:
"There are obvious common threads which run through system of review of administrative decisions, especially where the primary decision-making function is administrative or governmental. The function of the courts is to guarantee legality, so that notion itself has a number of elements, some procedural and some substantive. The passages which I have cited speak of 'manifest' error as the test for Judicial Review adopted by the Community Courts. This is the standard which applies to the appreciation of facts by the decision maker. They do not say that this test must be adopted by the national Courts. I would observe, however, that the word 'manifest' should not be equated with any exaggerated description of obviousness. A study of the case law will show that the Community Courts are prepared to annul decisions, at least in certain contexts, when they think an error has clearly be made."
6.2 Jurisdictional/Fundamental/Ultra Vires
Section 39 of the 1963 Act provides that a local authority shall not effect any development in their district which contravenes materially the development plan. (See O'Leary & Ors. v. Dublin County Council) (O'Sullivan and Shepherd 1.641) (See also Barron J. in Roughan v. Clare County Council (1.649B) ) which established that all major developments to be carried out by a local authority should be specified in the development plan.
In O'Leary the Court stated:
"If an application were made by a private developer for permission to develop part of the lands in an area zoned as a high amenity area, by the erection of five dwellings for private residential accommodation, I have no doubt that it would be resisted strenuously by the planning authority on the basis that it would amount to a material contravention of the county development plan. I do not think that a private developer would be allowed to argue that the area involved in his project was small in relation to the area comprised in a particularly high amenity area, and that therefore the contravention, if any, was not 'material'. I think the requirements of the planning law have to be applied with the same stringency against a local authority in this case as would be the case if the proposal came from a private developer. The very praiseworthy motives of the County Council in endeavouring to make provision for deprived classes and to do it in a manner which seeks to involve all electoral areas within their territory, are not sufficient to absolve them from compliance with the planning law. (per O'Hanlon J., (1988) I.R. 150.
A more fundamental attack on the decision than the issue of reasonableness or irrationality is that of vires. The applicant says that there was material contravention of the development plan and, accordingly, a failure to comply with
s. 39(d) of the 1976 Act as amended.
The applicant said the development plan forms "an environmental contract" with the community. The council cannot effect any development which contravenes the plan materially.
Section 39 (c) substituted s. 26 subs. (3). The substitution refers to certain requirements, including notices, opportunities to object or make representations and resolutions passed which would permit development which would contravene materially the development plan or any special amenity area order.
I have carefully considered the submissions in this regard made on behalf of the applicant and of the respondents in relation to the nature of the development plan.
I would adopt the decision of McCarthy J. giving the judgment of the Supreme Court in The Attorney General (ex rel McGarry) v Sligo County Council (1991)
1 I.R. 99, [1989] I.L.R.M. 768 where it was held:
"The plan is a statement of objectives; it informs the community, in its draft form, of the intended objectives and allows the community the opportunity of inspection, criticism and, if thought proper, objection. When adopted, it forms an environmental contract between the Planning Authority, the Council and the Community, embodying a promise by the Council that it would regulate private development in a manner consistent with the objectives stated in the plan and, further, that the Council itself shall not effect any development which contravenes the plan materially. The private citizen, refused permission for development on such grounds based on such objectives, may console himself that it will be the same for others during the currency of the plan, and that the Council will not shirk from enforcing these objectives on itself."
In his judgment, the use of a quarry or pit as a refuse dump or pithead was a clear and material contravention of the Development Plan in the area of the Carrowmore passage grave cemetery even where a road divided the quarry from the main cemetery area. Every part of the Development Plan to which reference had been made clearly identified the local, national and international importance of that area of County Sligo.
In Ferris & Ors v Dublin County Council, Unreported decision of the Supreme Court on the 7th November, 1990, a County Manager proposed to install some thirty itinerant families in a rural part of the county in reliance on an amendment to the Development Plan authorising the location of halting sites in such areas. The plan was to accommodate thirty families on a temporary basis pending ultimate settlement in established halting sites. The High Court held the proposal to be in material contravention of the Development Plan. However the Supreme Court, in allowing the appeal, emphasised that the Courts would not impose its own planning judgment on a planning authority where the latter's action is reasonable.
Finlay C. J. referred to the amendment to the Development Plan which provided as a permitted use for lands in zone A1 the provision of halting sites without any particular limitation of the number of caravan parking places in any given halting site. The policy decision to restrict numbers could not possibly amend the Development Plan. The Chief Justice, giving the judgment of the Court, stated:
"I am therefore satisfied that there can be no question of the zoning being other than is expressly stated in the Plan, that is to say, halting sites as I have read the definition from the Plan being a permitted use for zoned A1 lands. The lands in question in this case are zoned A1 and accordingly no question of a contravention of zoning provisions in the plan arises."
The Chief Justice then continued:
"The last item that then arises is that the question that this is a bad planning decision. During the course of the debate in this case in the last few days it has been pointed out by the Court on a number of occasions that it has a narrow function in this context. As we decided in the case of An Taisce v Dublin Corporation by the former President of the High Court, Mr. Justice O'Keeffe, and, which is cited with apparent approval in the decision of this Court in the McGarry v Sligo County Council, it is clear that the Courts do not accept, or cannot accept, responsibility or authority to decide planning questions on planning standards, but must have a much more limited role to play in regard to the functions of planning authorities.
That role, in my view, quite clearly is only to intervene if a decision such as the present one is made by a housing authority through the County Manager, which involves question of planning which is so unreasonable as to come within the category of unreasonableness which is laid down in the decision of this Court in Keegan v Stardust Tribunal, in the judgment of Mr. Justice Henchy, and to which has since the decision in that case, which was in 1986, been again affirmed by this Court in a different topic, but the same point, in the case of Stroker v Commissioner of An Garda Siochána. Very shortly summarised, the view of Mr. Justice Henchy, in which all the other members of the Court in the Keegan case agreed, and which was subsequently endorsed by the further decision to which I have referred, is in this passage, and I quote:
'I would myself consider that the test of unreasonableness or irrationality in Judicial Review lies in considering whether the impugned decision plainly and unambiguously flies in the face of fundamental reason and common sense. If it does, then the decision-maker should be held to have acted ultra vires, for the necessary implied constitutional limitation or jurisdiction in all decision-making which effects rights or duties requires inter alia that the decision-maker must not flagrantly reject or disregard from the mental reason or common sense in reaching his decision.'
…in those circumstances, bearing in mind the fact that this is a temporary halting site that is being dealt with and rejecting as I do the suggestion that it is some sort of cover for a permanent one, I am satisfied that the learned trial judge was wrong in concluding that there was a fatal flaw or illegality in the order which would entitle the Court to quash it. I think it is clear, and I make it clear, that this is based to a very large extent on the fact that it is a temporary expedient for an urgent problem, and that if it were sought, and the County Council through their counsel indicated an absolute absence of intention of trying to turn it into a permanent one, and having regard to the basis on which this Court has rejected the challenge, I would consider it clear that an attempt could be made after five years to prevent any further use, if it were attempted by the County Council."
Even if one were to apply the "manifest error" test it would seem to me that the gravamen of the decision remains the same. The Courts shall not impose its own planning judgment on a Planning Authority where the latter's action is reasonable.
6.3 Development Plan
The Development Plan, in the instant case, is clear and unambiguous. While the planning permission granted in July 1999 was for a period of ten years and subject to detailed conditions, it was not temporary in nature.
It is perhaps necessary to repeat the provision contained in appendix 7 at paragraph (3) of 7.10 in relation to the Sallymount/Johnstown cell which is as follows:
"(3) To provide for and facilitate improved Waste Water Treatment Works for the Arklow Urban Area and Arklow Environs Area."
It is clear that the plan did contemplate a waste water treatment works as an authorised development in such a cell.
In Roughan v. Clare County Council (High Court decision of 18th December, 1996) Barron J. added that, in determining whether a contravention should be regarded as material, regard should be had to the following matters:
"(i) the interpretation which a reasonably intelligent person not having any specified expertise would understand by the disputed provisions of the plan;
(ii) whether a private developer would have been refused planning permission for the development being proposed by the planning authority had permission been sought (the case of O'Leary v Dublin County Council was followed) and;
(iii) whether the development would be regarded as significant having regard to its location, the planning history of the proposed site, the objectives of the Development Plan and the level of actual or potential local objection."
Having regard to these matters, I can have no doubt that a reasonably intelligent person, on reading para. (3) of 7.10 of the development plan would regard it as a permissible user of the cell in question, and notwithstanding the other objectives, that it would be permissible to have a waste water treatment works there. There was no evidence that a private developer would have been refused planning permission. Despite the level of actual or potential local objection, the planning history of the site, as from 1993 was consistent with the provision of the Development Plan.
The applicants referred to Wicklow Heritage Trust Limited v Wicklow County Council, Unreported High Court decision of McGuinness J. of 5th February, 1998 which held that a decision as to whether a particular development is or is not a material contravention of the County Plan is a matter for the court. McGuinness J. stated:
"Equally the other issues which were raised on the instance case, such as locus standi, a necessity under legislation for a waste management plan and the need for the siting of a land fill project to be an essential part of such a waste management plan are matters of law which fall to be decided by this Court."
The decision of Barr J. in Tennyson v Dun Laoghaire Corporation (1991) 2 I.R. 527 at 534 distinguished between a challenge to a proposed development on purely planning criteria and on issues relating to matters of law:
"First on a purely planning criteria (as for example for a contention that the decision of the authority to exclude certain units of a proposed development is erroneous in that it was unnecessary and did not accord with good planning practice) and, secondly, that the decision is ultra vires the powers of the planning authority. The later category of suit includes issues in relation to the meaning of the Development Plan relating to the particular application.
The Oireachtas has provided in the planning code a forum for the adjudication of appeals from decisions of planning authorities within the first category, that is those relating to planning matters per se. Such appeals were heard and determined by An Bord Pleanála which is a tribunal having the benefit of special expertise in that area. The Court is not the appropriate body to adjudicate on such matters and, in my view, it ought not interfere in the disputes relating to purely planning matters.
However, where the dispute raises an issue regarding a matter of law such as an interpretation of the wording of a development plan in the light of relevant statutory provisions and the primary objective of the document, then these are matters over which the Court has exclusive jurisdiction. An Bord Pleanála has no authority to resolve disputes in matters of law."
There seems to me to be no ambiguity or dispute regarding the wording of the development plan which expressly includes the proposed development.
The Court must distinguish as this stage, cases where there is no objective in the Development Plan relating to the proposed development and those cases, as the present one, where there is a clear and unambiguous objective included.
It seems to me that the difficult task of ensuring that the other objectives of the plan are co-ordinated with that of the Waste Water Treatment Works is a matter for the planning authority and not for the Courts.
The judgment of McGuinness J. in Wicklow Heritage Trust Limited v Wicklow County Council (delivered the 5th February, 1998) is distinguishable in relation to the proposal by Wicklow to develop a waste disposal site where no provision had been made in the relevant area for such facility. McGuinness J. had stated at page 35 of her judgment as follows:
"The objective of providing waste disposal sites, for whatever reason, is not included in the 1989 Wicklow Development Plan. The County Council had not adopted a waste management plan which would provide for such waste disposal sites as an essential part of such a plan."
The prohibition, relied on by the applicants, in paragraph 3.4.4 to protect public and private investments by prohibiting any new building of development within 50 metres of the "soft shore line" is intended to protect such investment rather than, in this instance, to protect the "soft shore line". It is clear that Wicklow was aware of the observations of the European Commission with regard to the trenching contained in the 1993 permission. To this end the "no dig" method was accepted as a solution. It is also clear that a discharge to the sea would be required.
6.4 Insufficient material on planning file
Sean Byrne v. Wicklow County Council, unreported judgment of the 3rd November, 1994, related to a challenge to a proposed development by the Commissioners of Public Works in Wicklow. The applicants contended that the manager had no relevant material before him to come to the conclusion that there was no breach of the development plan. At page 12 of the judgment Keane J., as he then was, summarised the principles to be applied in a judicial review of a decision of an administrative body, as derived from the decision in O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39:
"Everything before me and everything that has been referred to in the course of argument indicates that there was material before the manager which entitled him to arrive at the decision he did that no material contravention was involved. Whether or not that was the correct decision, and whether or not it was the decision that the court would have arrived at, and whether or not it was a decision which the objectors would have agreed with, which they manifestly did not, it was plainly and almost inarguably a decision in respect of which there was material before the manager entitling him to arrive at that conclusion."
These principles were further set out by Laffoy J. in O'Reilly and Ors. v. Kevin O'Sullivan and Dun Laoghaire-Rathdown Council, 25th July, 1996, at pp. 19 and 20.
In assessing the E.I.S. the planning officer, Mr. O'Brien, had before him paragraph 16 of the E.I.S. which referred to the results of the site investigations carried out by Glover. He was satisfied from the material therein that there was no risk to the underlying ground water. Whether this was a decision which the applicants manifestly did not agree with or, indeed a decision which the court might not arrive at is not the test. The test is as to whether there was relevant material before the decision maker to allow him to come to the view he did.
It seems to the Court that the underlying ground conditions were known, and that information was in the E.I.S.
There was sufficient relevant material before the planning authority to arrive at the decision that was made.
6.5 Compliance with planning regulations
Having made that finding it is now necessary to consider the argument relating to the failure to comply with Article 23 (1) of the Local Government (Planning and Development) Regulations, 1989 – 1998.
The applicants in their submissions rely on Articles 19 and 23 (1) and on the judgment of Henchy J. in Monaghan UDC v Alfabet Promotions Ltd. (1980) I.L.R.M. 64 at 69:
"When the 1963 Act prescribed certain procedures as necessary to be observed for the purposes of getting development permission, which may affect radically the rights or amenities of others and may substantially benefit or enrich the grantee of the permission, compliance with the prescribed procedures should be treated as a condition precedent to the issue of permission.
…
In other words, what the legislature has prescribed, or allowed to be prescribed, in such circumstances as necessary should be treated by the Courts as nothing short of necessary and any deviation from the requirements must, before it can be overlooked, be shown, by the person seeking to have it excused, to be so trivial, or so technical, or so peripheral, or otherwise so insubstantial that, on the principle that it is the spirit rather than the letter of the law that matters, the prescribed obligation has been substantially, and therefore adequately, complied with."
In O'Brien and Ors. v South Tipperary, Unreported decision of the 22nd October, 2002, O Caoimh J. held that the issue of the visibility and legibility of the site notice in that case fell under the de minimis rule.
An application for planning permission does not require working drawings, nor, indeed, details with regard to plant and machinery. Where there is a public procurement requirement, a grant cannot extend to a designation of specific plant and machinery.
It seems to me that the prescribed obligation has been substantially complied with. There was nothing misleading and the applicant did not suffer any prejudice
6.6 Failure to comply with the provisions of the Environmental Impact Assessment Regulations.
The applicants, relying on the EC directive E/337/EEC as amended by the EEC directive 97/11/EC, submitted that certain requirements were not met: to give a description of the whole project included the works in Arklow, including the inlet and pumping station, of the main characteristics of the production process and to give an estimate of expected residues and emissions resulting from the operation of the proposed projects.
The applicant said that the amended provisions required an outline of the main alternatives studied by the developer and an indication of the main reasons for his choice, taking into account the environmental effects.
The applicant said that a planning application of this nature was radically different from one not requiring an environmental impact assessment in that the developer is required to give an outline of the main alternatives and an indication of the main reasons for his choice, taking into account the environmental effects.
The applicant said that there was a complete failure to make reference or to take any account whatsoever of the impact which the development would have on ground water; it failed to address the possible impact which the tunnel would have on the environment and on the sand dunes and said there was insufficient information to enable meaningful prediction of the likely odour emissions from the development.
A further complaint related to the sufficiency of maps, drawings, elevations and/or specifications in order to enable an adequate assessment of the said development to be made. The reference in relation to "specified information" and schedule II was also identified as a complaint.
The second schedule to the European Communities (Environmental Impact Assessment) Regulations of 1989 requires development of the classes set out in part 1 and part 2 of the first schedule is required in respect of an Environmental Impact Assessment pursuant to Article 23 of the Regulations. The Article defines "State Authority" as meaning any authority being a Minister of the Government or a Commissioner of Public Works in Ireland.
The directive was implemented in Irish Law by the European Communities (Environmental Impact Assessment) Regulations, 1989, nineteen months after the prescribed implementation date of the 3rd July, 1988. The 1989 Regulations took effect on the 1st February, 1990. They were amended in 1994 and in 1996 containing much of the finer detail.
There was a period when the doctrine of direct effect was of importance (see Browne v. An Bord Pleanála (1991) 2 I.R. 209). O'Sullivan and Shepherd say at 7.101 that the significance of the directive has diminished since it was implemented into Irish law by secondary legislation. However, the directive continues to be of relevance as an interpretative tool. From a reading of its recitals the authors continue, it is clear that the directive aimed to prevent the creation of pollution or nuisances at source by addressing problems at the earliest possible stage of the planning and decision making process. The directive proposed to introduce consent procedures for public and private projects likely to have a major affect on the environment. Such consent would be informed by the developer's assessment of the likely impact of the project on the environment. Projects were to be streamlined into two groups, namely those which would require a consent in all cases and those which would only require a consent of certain conditions (thresholds) were reached.
The directive required the introduction of national measures which would ensure that projects that were likely to have significant affects on the environment by virtue of, inter alia, their nature, size or location would be appropriately assessed (Article 2). The directive excused projects required for defence purposes and those which were permitted by specific legislative enactment. Further, each Member State was to have the power to exempt specific projects from the requirement of the directive, provided certain accountability requirements were met (Article 2).
"Projects" were given a meaning similar to the Irish law concept of "development" and was defined as (a) the execution of construction works or of other installations or schemes, and (b) other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources (Article 1). A "developer" was an individual requiring authorisation for a project or a public authority proposing to initiate a project.
Projects requiring an EIS in all cases were listed in annexe 1 to the directive; those requiring a EIS if certain conditions or thresholds were reached, were listed in annexe 2 (Article 4).
The directive requires that an EIS should describe and assess the direct and indirect affects of the project on living (human beings, fauna and flora), non-living (soil, air, climate, and landscape) and other (material assets and cultural heritage) aspects of the environment (Article 3). At the very least an EIS was to contain:
- a description of the site, design and size of the project,
- a description of the measures envisaged to avoid, reduce and remedy significant adverse effects.
- the data required to identify and assess the environmental impacts of the project, and
- a non-technical summary of the above information.
The directive envisaged that more information would be required to meet the requirements of particular cases. Annexe 3 of the directive lists the type of information that could be so required.
Member States were expected to consult appropriate bodies (i.e., those having environmental responsibilities) upon receipt of an EIS. In addition, the public (or a section thereof), was to be afforded an opportunity to inspect and make submissions and observations on an EIS before the project was permitted (Article 6). In appropriate cases, other Member States affected by the project would have to be consulted. A Member State was required to take account of the information contained in the EIS and to any contributions (i.e., submissions and observations) arising out of the consultation process (Article 8).
Any decision reached on foot of an EIS by a Member State was to be publicised. The giving of reasons for the making of any such decision would depend on the requirements of national legislation.
Each EIS must comply with the content requirement of Article 25 of the 1989 EIS Regulations. The planning authority can, by notice in writing, require such compliance and to this end can demand any additional information as may be required. It is a matter for the planning authority to determine the adequacy of the information so provided (see Brown v. an Bord Pleanála).
While Mr. Ó Ruairc who distinguished the requirements of the Directive did not elaborate on the "many elements of the EIA directive" which are compulsory and those which are not, it seems to the Court that by reason of the further information given and to the reports prepared that the planning authority had sufficient material before it regarding alternative sites and regarding adverse effects on the environment.
Assuming, without so deciding, that the directives have direct effect and adopting as the test that was manifest error, does the environmental impact statement comply with the directive in relation to each of these matters?
Article 5 of the 85 directive requires that specified projects be subject to an environmental impact assessment. All necessary information, as noted in annex 3 of the directive, is required to be provided by the developer to the competent authority providing development consent. It does not follow that all necessary information must be contained in the environmental impact statement itself. Information can and, indeed, in practice is, required by the competent authority from the developer. To this extent the competent authority may take into account all further information received as a result of matters raised by it.
It is not the function of the Court in a judicial review application to engage in an exercise in checking the information noted in annex 3 of the directives against the environmental impact statement submitted by Arklow and the information received by Wicklow. This is a matter of technical appraisal by the planning authority and, on appeal to Bord Pleanála to assess the degree to which all the necessary information had been provided. The overriding principle of reasonableness is relevant.
The whole project was described in paragraph three of the non-technical summary and at chapter three as the replacement or elimination of raw or untreated sewage to the Avoca River with treatment of the waste water to such a level that it complies with national and EU standards.
The main characteristics of the production process was dealt with in the same chapter and in particular at 3.5.3. The alternatives were dealt with in paragraph 4 of the summary and in chapter 4 of the statement.
The physical characteristics of the proposed development, and the land use requirements during the construction and operational phases, would appear to have been addressed in the final chapter (18-construction), in chapter 3 and, in relation to specific environmental considerations, in the intervening chapters.
There is no doubt, that on reading the extensive affidavits and on listening to the evidence in cross-examination in Court, that certain matters could very well have been addressed differently, or in more detail. However, it seems to me that there was no "manifest error" nor anything that flew in the face of common sense that was wholly and clearly unreasonable in the statement.
Indeed Wicklow itself was not satisfied with the EIS statement and raised a number of queries in relation thereto.
The acting executive chemist for Wicklow expressed reservations regarding the compatibility of the design of the treatment works with the "strategy and options for treatment and disposal of sewage sludge in Ireland" and believed that the EIS was deficient in this regard and in regard to the dispersion study.
Mr. O'Brien, the planning officer, said that he did not get all the detail he would have liked, and imposed detailed conditions in relation thereto. It was only then that he was satisfied that the application complied with the statutory requirements.
The one area of the statement and assessment that was of direct concern to the applicants was that of ground water. This is a matter which, perhaps, received least satisfactory treatment in the statement. There is no heading in relation thereto in the references on page 89 – 92 of the statement. It may very well be that within the primary references that there is a reference to ground water protection schemes (1999) which was referred to by Mr. O'Brien, in his evidence.
In relation to water, paragraph 6 of the non-technical summary stated that a large proportion of the Avoca River was classified as seriously polluted. Details in relation thereto were given. Once the waste water treatment works were operational, the summary continues, water quality at the mouth of the Avoca would improve. Chapter 6 deals with water in greater detail in relation to the river water quality and bacterial quality of bathing waters. The primary impact of commissioning the works in Arklow was to have been an improvement of the quality of water flowing into the Irish Sea as raw sewage would no longer be discharged into the estuary of the Avoca. The effluent produced by the treatment plant would be required to adhere to the Urban Waste Water Treatment Directive and the EPA Act, 1992 (Urban Waste Water Treatment) Regulations, 1994 which impose certain limits for suspended solids and for gases. It was not possible to compare those limits with the standards referred to in Table 6.1 and 6.2 in the EIS.
There was no reference to ground water in the chapter on water quality.
However, chapter 16 refers to the sub soil conditions at the proposed development site and to the Glover site investigation. That stated that the ground at the treatment works site comprised generally of firm to stiff gravely silty clay, overlaid bedrock of moderately to highly weathered slate to a depth of 14.8 metres. This finding resulted from a single bore hole drilled at the treatment works and a further nine bore holes drilled in the vicinity of the proposed pipeline route. Experts giving evidence on the part of the applicant were of the opinion that the aquifer underlying the development site was vulnerable; that the deepest tanks would bring treated and semi-treated outflow to within a few feet of the aquifer and that the outfall pipe would run through it. There was some discrepancy as to the positioning of the flushing chamber on top of or within the outfall pipe which, it was feared, could lead to further pressure with ensuing risk.
Mr. O'Brien, in assessing the project, relied on the depths of the ground at the treatment works. While a second bore hole had been advised, he did not think that it would have added any significant information. Moreover, to do so at the sand dunes might have a detrimental effect thereon. He was aware of the refusal by the applicants to have investigations carried out on their site in relation to sub soil. Mr. O'Brien believed that the construction of the tanks, even in the absence of working drawings, would ensure that leaks, if they did occur, would be minimal and would be absorbed adequately.
There was some controversy regarding the nature and quality of the aquifers. It would appear that the applicants had, and still were connected to the main supply though they had ceased using it. Mr. O'Brien believed the outflow to the sea was significant in minimising any risk. It was not possible to assess the nature of the sub soil on the applicant's site.
In a review by the Courts of conflicting evidence it is not appropriate in Judicial Review proceedings to weigh that evidence up on one side and another. It seems to me that the first named respondent was entitled, on the information available to it, to make a decision. It may very well be that further questions might have been raised, in particular in relation to ground water. Bord Pleanála was entitled to take into account that the applicants had refused access for investigations to be made; that they had been connected to the town's supply. In his assessment and notwithstanding the depth of the treatment work tanks, the planning officer was entitled to take into account the depth of ground, the proximity to the sea, the nature and construction of the tanks into account.
6.7 Reference to the Court of Justice under Article 234.
I considered the Commission v The Federal Public of Germany case (C-431/92 (1995) UCR1-2189) in relation to Articles 2, 3 and 8 of the 1985 directive. I have also considered the extensive submissions of the parties in relation to a reference. Having regard to the above findings it does not seem to me that such a reference is justified or necessary.
6.8 Conclusion
In the circumstances the applicants are not entitled to the orders sought.
1.1 Background
1.2 Chronology
1.3 Permission granted subject to conditions
1.4 Wicklow County Development Plan
2.1 Summary
2.2 Notice requiring information
3.1 Pleadings motion
3.2 Statements of opposition
4.1 Applicant's affidavit (10th September, 1999)
4.2 Affidavit of Desmond O'Brien sworn 25th September, 1999
4.3 Affidavit of Sean Quirke
4.4 Affidavit of Seosamh O'Ruairc of 24th November, 1999
4.5 Eugene Daly's report (2nd December, 1999)
4.6 Applicant's second affidavit (17th December, 1999)
4.7 Expert affidavits exhibiting technical reports.
4.8 Dr. Hoyland's affidavit
4.9 Affidavit of Michael Bailey
4.10 Desmond O'Brien's second affidavit of 28th June, 2002.
4.11 The second affidavit of Seosamh O'Ruairc.
5.1 Material breach of development plan
5.2 Deficiency in the Environmental Impact Statement.
5.3 Failure to comply with regulations.
5.4 "No-Dig" solution
5.5 Arklow's legal submissions
6.1 Unreasonableness
6.2 Jurisdiction/fundamental/ultra vires
6.3 Development plan
6.4 Insufficient material on planning file
6.5 Compliance with planning regulations