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11th Annual Conference on Law and the Environment
University College Cork
25th April 2013
Case Study Note
Indaver, Costs & Access to Justice
Joe Noonan
Noonan Linehan Carroll Coffey
54 North Main Street
Cork
021 4270518
jnoonan@nlcc.ie
www.nlcc.ie
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Case Study Note
Indaver, Costs & Access to Justice
1. Time Line
It is important to read this study note in conjunction with the accompanying A3 sheet which
sets out in timeline format, the events of the past eleven years. The story is not yet over.
The message emerging from the timeline is suggestive of a system that bends to suit
decisions made on high to favour a particular type of development. All too often,
democratically adopted plans, objective technical standards and legal rules are liable to be
fudged if they are seen to pose a barrier to an approval. If and when a fudge is challenged
successfully another fudge is likely to be found.
A concerned individual or group must be prepared to go to extraordinary lengths, maintain
superhuman patience, raise enormous sums of money, have immense reserves of hope and
above all, must never assume that the authorities will do their job properly. The extent to
which they may do so is at best unpredictable.
Public bodies involved include:
Planning Authority, Local Authorities, Elected Members, Management, Successive Taoisigh
and Government Ministers in Depts of Environment, Health. An Bord Pleanála
Environmental Protection Agency Health & Safety Authority Health Service Executive
Health Research Board EU Commission High Court Supreme Court Court of Justice of the
EU
The timeline may look like a fantastic joke, but it’s not a joke. This series of processes over
eleven years has cost the local communities hundreds of thousands of euro in commissioning
expert reports, engaging expert witnesses to appear repeatedly at multiple drawn out oral
hearings, and for legal representation through three long oral hearings and three sets of
Judicial Review proceedings before the High Court and Supreme Court. A large period of
many people's lives has been dedicated to making what was always obvious, undeniable and
inescapable.
In addition to fundraising and committing endless hours of unpaid time, the community
continue to pay their taxes which fund the public bodies engaged in all these processes.
In contrast with the developer, the community’s costs are not tax deductible and must be
drawn from after tax income. Nor can the community recover vat on costs incurred.
Roughly one euro in every five that they community goes directly to Government in the form
of vat.
There have been two instances of limited contributions to the community’s costs. The first
was at the end of the 2008-2011 planning process. Costs incurred and vouched by the
community to An Bord Pleanala were approximately €147,000 including vat. The Board
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decided to direct Indaver to contribute €50,000 towards this.
At the same time, the Board
directed Indaver to pay the Board €382,000 in respect of the Board’s costs.
The second was the recent High Court Order made in January 2013 when the Court found
that Indaver had engaged in an abuse of the process of the Court in the conduct of its judicial
review proceedings. The Court directed Indaver to reimburse a portion of the costs incurred
by both An Bord Pleanala and the community in contesting the judicial review.
See copy
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judgement given 21 January 2013 by Mr Justice Kearns, President of the High Court.
2.
One could look at this timeline and ask what is the point of all this effort. Eleven years
down the road and there seems to be yet another planning application in the pipeline, despite
everything. The first answer is that today there is no Indaver incinerator in Ringaskiddy.
The second answer is more complex. If we are to preserve the rule of law, and what
democracy we have left, we must assert and apply the agreed rules and principles which
govern these developments. It would seem from this particular experience that the strong
support of the community for proper assessment and procedure, eventually won through with
the ECJ and An Bord Pleanala. There is no doubt but that this outcome would not have been
achieved without the vigorous and sustained participation of the community.
At the outset of this saga in 2003, the communities pointed out two straightforward facts.
The location was unsuitable and the procedure under which the application was being
assessed was unlawful.
A decade later, it is now accepted that they were right on both
counts.
3.
Sadly, there would now appear to be a new but in many ways familiar challenge
looming over many rural communities around the country.
It comes in the form of industrial scale wind turbine development. I admit to having been in
favour of wind energy for years. It seemed to me in my ignorance to have no drawbacks and
plenty of advnatages. Distant rotating turbine blades seemed a novel and progressive feature
in the landscape. I have had to revise my view on the basis of new evidence. Unfortunately
some large turbines have been located too close to private homes with disastrous
consequences for those living there. Intrusive noise pollution and shadow flicker have been
particular causes of acute distress. A relatively small number of people have been affected so
far, but that is no consolation to those who have been driven from their homes as a result of
thoughtless or ignorant planning decisions. Instead a blind eye is turned in public bodies.
Planning permission noise conditions turn out to be weak and to have enforcement loopholes.
In some permissions there are no noise conditions at all. The Office of the Ombudsman –
set up to ensure local authorities carry out their responsibilities - seems unable or unwilling to
intervene. A Court may decline to injunct a turbine operator when it hears of the massive
profits at stake, for fear of landing the homeowner with a ruinous bill if their case ultimately
does not prevail.
A political commitment has made to promote wind energy. In the rush to support the rapid
growth of this sector, much is overlooked. The EIA Directive for example. Planning
permissions for the large scale turbine installations currently in operation, were given
regardless of the mandatory provisions of the EIA Directive. Those obligations were only
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belatedly recognised after the CJEU decision in Commission v Ireland C-50/09 judgement of
3rd March 2011. There is little or no critical assessment of these developments. The
Minister for Energy does not want to know about problems and wonders why there is so
much talk of objectors when the idea is self evidently brilliant. Group-think abounds at
policy making level. Wind turbines are seen rightly as goldmines, for the privileged few.
Wind energy is seen by some as a new property boom. The recent so-called public
consultation period on noise guidelines was the shortest and least publicised of its kind on
record yet. We will soon see whether that exercise was a complete charade or not.
4.
Conclusion.
Last August an entry appeared on the website of An Bord Pleanala disclosing that a pre
application consultation had begun between the Board and Indaver on a waste facility at
Ringaskiddy. Today April 25th over seven months later, the website describes that
consultation as ‘yet to be concluded’.
The purpose of a pre-application consultation under the Strategic Infrastructure Development
procedure is to establish the Board’s opinion on whether a particular development is or is not
to be treated as strategic infrastructure. The consultation proceeds in private. We can only
guess what is taking so long. Remember that these parties took from February to September
2008 to complete a similar pre application consultation.
The communities in Cork Harbour learned of this third application with dismay. The site is
as unsuitable as it ever was. The proposed development is as unacceptable as it ever was.
This process has the characteristics of a war of attrition. Citizens should not be subjected to
wars of attrition. Public bodies and the law should protect them from that, and allow them to
get on with their lives.
It should not be necessary to go to Court much less to go to Brussels. The system can work if
it is operated with respect and diligence. Planning Inspectors have shown this repeatedly.
5.
Last word.
Bad planning decisions can cause harm yet the decision making bodies are generally immune
from the consequences. This ground may be shifting. Last month’s decision of the CJEU
deserves to be widely studied.
Leth v Austria CJEU Case C‑420/11 Judgment 14 March 2013
Selected references.
Indaver first planning application ABP ref: 04.131196
Indaver second planning application ABP ref: PA0010
Indaver third planning pre-application ABP ref: PC0151
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