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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Rooney & Ors v. An Bord Pleanala & Anor [2003] IEHC 100 (20 March 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/100.html Cite as: [2003] IEHC 100

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THE HIGH COURT JUDICIAL REVIEW

[2000 No. 67 J.R.]

Between:

DESMOND ROONEY, KATHLEEN CURLEY and ANN COADY

Applicants

and AN BORD PLEANÁLA and THE COUNTY COUNCIL OF THE COUNTY OF GALWAY

Respondents

and THE MAYOR, ALDERMEN AND BURGESSES OF THE CITY OF GALWAY and THE REGIONAL FIRSHERIES BOARD and CASTLEGAR COMMUNITY COUNCIL

Notice Parties.

Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 20th March, 2003.

This is an application brought by way of an application for judicial review of a decision of the first respondent (hereinafter referred to as 'the Board') on planning applications relating to the retention of waste deposited and rehabilitation measures together with additional land filling and an entrance control site at Carrowbrowne, County Galway and for the construction of a leachate lagoon and ancillary works for treatment of leachate from Carrowbrowne landfill at Carrowbrowne in the county of Galway, which decision was made on the 23^rd December, 1999.

By order of this Court (O'Sullivan J.) made the 8^th May, 2000 the applicants were given leave to institute these proceedings to seek the following relief:-

1. An order of certiorari quashing the decision of An Bord Pleanala to dismiss the appeal on planning application register reference no. 98/4047, An Bord Pleanala register reference no. 07.111561.

2. An order of certiorari quashing the grant of permission consequent upon that dismissal of the appeal of Galway County Council which grant of permission is dated the 26^th May, 1999.

3. An order remitting the appeal reference no. 07.111561 to An Bord Pleanala so as to determine it in accordance with the provisions of the Local Government (Planning and Development) Acts 1963 to 1999.

4. A declaration that the application planning register reference no. 98/4047 is not a valid application for the purposes of the Local Government (Planning and Development) Acts 1963 to 1999 or in the alternative that the grant of permission issued by Galway County Council does not comply with the mandatory requirements of the Local Government (Planning and Development) Acts 1963 to 1999.

5. An order of certiorari quashing the decision of An Bord Pleanála to dismiss an appeal on appeal register reference no. PL07.111771, planning authority register reference no. 98/3858.

6. An order remitting that appeal to the first named respondent so that it can be determined in accordance with the provisions of the Local Government (Planning and Development) Acts 1963 to 1999.

7. A declaration that the application register reference no. 98/3858, An Bord Pleanála reference no. PL07.111771 is not a valid application for the purposes of the Local Government (Planning and Development) Acts 1963 to 1999 nor has been made in accordance with the regulations made there under.

8. A declaration that the conditions attached to the grant of permission are other than in accordance with the provisions of the Local Government (Planning and Development) Acts 1963 to 1999.

The grounds upon which the applicant seeks the said relief are as follows:-

1. An appeal against the decision of Galway County Council to grant planning permission consisting of a leachate lagoon and ancillary works for the treatment of leachate from Carrowbrowne town land, County Galway was submitted by the second named applicant.

2. The first named respondent by decision dated the 23^rd December, 1999 decided not to consider that appeal further and dismissed the appeal thereby the first named respondent failed to have regard to the submissions made and failed to properly determine the appeals lodged thereby authorizing the grant of permission by the Galway County Council for the aforesaid development.

3. The reason for the dismissal of the aforesaid appeal arose from the determination by the respondent, An Bord Pleanala, that the application related to an activity which was subject to the requirements of the Waste Management Act 1996 and required a license in respect of that Act and that the appeals submitted did not include material other than that relating to the risk of environmental pollution which they were obliged not to have regard to. The respondent erred in law in this contention.

4. Notwithstanding this conclusion the first named respondent acted inconsistently in failing, having regard to the decision made in respect to the nature of the proposed development, and failed to require that the applications submitted complied with the requirement of the Local Government (Planning and Development) Regulations 1994 and in particular Article 18(12)(i) as inserted by S.I. 261 of 1997.

5. The respondents determined an application which is an invalid application for the purpose of the Local Government (Planning and Development) Acts 1963 to 1999 and the regulations made there under.

6. Because the first named respondent determined that the application was such as to require it to be licensed pursuant to the Waste Management Act 1996 the submissions made by the appellants were not taken into account but notwithstanding this determination they failed to ensure that the requirements of the Planning Acts insofar as these applications are concerned, were complied with and thereby failed to afford the applicants the necessary statutory protection in order to allow submissions in accordance with the requirements of those statutory provisions to be made.

7. Notwithstanding that the appeal once lodged provides the application for planning permission is to be made de novo to the board and is to be considered by them as if it was made to the board in the first instance, the board nonetheless, by dismissing the appeals, has sought to confirm the decision of the planning authority notwithstanding that that decision is inconsistent with the determination of the board as to the nature of the application and the nature of the decision that can be made.

In particular the grant of permission by the local authority contains a number of matters which the board refused to consider submission on from the appellants, but effectively determined that the decision of the local authority should issue in an unaltered form together with the conditions therein contained. The decision in those circumstances was ultra vires the powers of the board and contrary to the provisions of the local Government (Planning and Development) Acts 1963 to 1999.

8. Planning application register reference no. PL07.111561, planning authority no. 98/4047 is a development for which an environmental impact statement should be carried out. The failure of the public notice accompanying the application to indicate that such a statement is necessary and the failure of the application to be accompanied by such a statement is a fundamental breach of the requirements of the Local Government (Planning and Development) Acts 1963 to 1999 and the regulations made thereunder and is contrary to the requirements of Council Directive 85/3372/EEC and the European Communities (Environmental Impact Assessment) Regulations 1989 to 1999.

The board erred in law in coming to the conclusion that there were no matters contained in the appeal submitted by the appellants other than matters which related to the risk of environmental pollution.

9. The first named respondent failed to consider that appeals lodged and failed to afford the applicants natural and/or constitutional justice.

10. The decision of the first named respondent was unreasonable and contradictory in reason and common sense.

11. The decision of the second named respondent consequent on the determination of the first named respondent is ultra vires and fails to conform with the requirements of the Local Government (Planning and Development) Acts 1963 to 1999 with regard to the conditions therein contained.

12. The second named respondent's decision was an error of law on the face of the record. The second named respondent had regard to irrelevant material in determining the applications and there are errors of law on the fact of the record.

13. The second named respondent had regard to irrelevant matters in determining the application and the decision made is fundamentally void and invalid.

14. In respect to planning application register reference no. 98.3958 An Bord Pleanala register reference 07.111771 the first named respondent erred in law in holding that there were no submissions made which the board could have regard to, as there were submissions made which did not refer to the risk of environmental pollution from the proposed development.

15. The first named respondent erred in law in holding that the totality of the application, register reference no.98/3958, was subject to obtain a waste license when in fact part of the application was for the retention of already completed works which matters are not the subject of an application for a waste license and as should be considered by the board particularly in the light of their previous determinations which limited the life of the site of a period of two years from the date of grant.

The first named respondent in dismissing the appeal authorized the second named respondent to issue its final decision and grant permission, which grant of permission contained conditions which were ultra vires the powers of the respondents and referred to matters in those considerations which related to the risk of environmental pollution, the very matters that the respondents denied the applicant's rights to make any submissions on.

16. The first named respondent had a duty to consider whether they were bound by their previous decision and whether the principles of res judicata applied, an issue raised by the applicants, which should have been determined.

17. The first named respondent failed to fulfil its obligations under the Local Government (Planning and Development) Acts 1963 to 1999 to carry out the procedures with regard to Council Directive 85/337/EEC, European Communities (Environmental Impact Assessment) Regulations 1989 and the Local Government planning and Development) Acts 1963 to 1999 and failed to comply with the statutory requirements with regard to such applications.

The application is grounded upon an affidavit of the first applicant in which he states that he lives in a house which is one mile from the landfill operation of the second respondent (hereinafter referred to as 'the County Council). He says that the second applicant's house is about 300 yards from the site of the proposed development, which he says is a dump, located within the functional area of the County Council. He points out that in 1996 the County Council granted Galway Corporation ('the Corporation') planning permission to extend the life of the dump which he and others appealed to the Board, and requested that the facility be closed down. The Board granted planning permission for the development subject to a number of conditions. He says that the clear understanding was that the permission would be for two years only, to enable the Corporation to find an alternative site and the conditions limited the amount of waste that could be dumped on the site, excluding certain types of waste, which were required to be treated. Mr. Rooney says that none of these conditions were complied with and the dump operated without any control or effective control during its life and in disregard of the conditions of the Board.

Mr. Rooney indicates that he instituted proceedings under s. 27 of the Local Government (Planning and Development) Act, 1976 to restrain the continued operation of the site and on 11^th December, 1998 by order of this Court the dump was required to be closed down. Mr. Rooney says that the County Council failed to comply with the orders of this court in respect of the operation.

Mr. Rooney points out that prior to the order of 11th December, 1998 the Council lodged two planning operations in respect of the proposed development. The second was entitled; "Application to construct a leachate lagoon and ancillary works for the treatment of leachate from Carrowbrowne landfill at Carrowbrowne townland, County Galway". In addition to this an application was made for the retention of the waste already deposited other than in accordance with the original planning permission together with an application for additional land filling, entrance control and ancillary matters.

Mr. Rooney indicates that he was concerned with these applications in view of the fact that the dump had never been properly monitored or controlled and also because he considered that these applications had been made in the teeth of the decision of the Board which had granted planning permission for a period of two years, expressly so that an alternative site could be found. Mr. Rooney lodged an objection with the County Council in respect of these two applications. On the 6^th May, 1999 the County Council decided to grant planning permission for the leachate lagoon development and on 26^th May, 1999 it decided to grant planning permission for the waste retention and landfill development. Mr. Rooney lodged an appeal to the Board against these decisions. He says that he was concerned that the dump was effectively being extended outside the original area and that this was inappropriate in light of the earlier decision of the Board with respect to the continued operation of the dump which he considered bound the Corporation and the County Council and he considered that it was not possible to go outside the clear terms of that decision.

Mr. Rooney indicates that he was concerned about the manner in which the development was laid out and in particular that it could pose a hazard to people who live in the general vicinity. He indicates that in his submission to the Board he expressed his concerns about the location of the treatment tanks so close to national primary route N 84, the visual impact of the tanks and also that the application conflicted with the earlier decision of the Board as well as to the unauthorised nature of the development and the retention aspects of the development.

Mr. Rooney indicates that on 17^th August, 1999 the Board wrote to the Corporation and asked it to confirm whether a licence would be required for the development, namely whether a licence for the landfill operation would cover the leachate lagoon and ancillary treatment works, to which the Environmental Protection Agency ('the E.P.A.') replied and confirmed that the development of the leachate lagoon was required to be licensed under the provisions of the Waste Management Act, 1996 ('the Act of 1996'). On the 28^th September, 1990 the Board indicated that it could only have regard to matters other than the risk of environmental pollution from the activity and on 2^nd December, 1999 Mr. Rooney was informed by the Board that the appeal might not be further considered in the light of the provisions of s. 14 of the Local Government (Planning and Development) Act, 1992 ('the Act of 1992'). Mr. Rooney says that he replied to this letter on the 13^th December, 1999 and that he next heard from the Board by letter of 22^nd December, 1999 which indicated that the letter of the 13^th December, 1999 had not been received by the Board within the period specified and it was returned to him. He says that on the next day the Board decided to dismiss his appeal, which he says allows the County Council to grant permission for the two developments.

Mr. Rooney indicates his contention that the proposed development of the leachate lagoon required a waste licence and on this basis he contends that the notice accompanying the application should have been changed and a new notice should have been published pursuant to the Local Government (Planning and Development) Regulations, 1994 ('the regulations of 1994') which he says should have specified that the application was subject to the control of the Act of 1996. The applicant contends that the application which the Board declined to deal with was an invalid application by virtue of the failure to comply with the regulations and he contends that the Board should not have determined the application and dismissed his appeal.

Mr. Rooney contends that portion of his submission to the Board related to matters other than relating to the risk of environmental pollution including the alleged conflict with the Board's earlier decision, safety aspects and the visual impact of the development together with its impact on the road network in the area and that accordingly the same should have been considered by the Board. Mr. Rooney contends that the Board has also excluded consideration of other matters raised by him including the validity of the decision of the County Council appealed from. Other matters raised by the applicant include a contention that the application in respect of the lagoon should have been accompanied by an environmental impact statement.

Mr. Rooney refers to the fact that the application for retention and landfill was accompanied by an environmental impact statement and that the public notice referable to this application referred to this fact and to the fact that it was the subject of an application for a licence pursuant to the Act of 1996.

The applicants lodged an appeal to the Board in respect of the decision to grant planning permission for this development, which appeal related to their concerns that the development had not been carried out in accordance with the earlier decision of the Board and was entirely unauthorised and also their concerns relating to the retention aspect of the proposal. The applicants were concerned that that application for the landfill part of the proposal was contrary to the earlier decision of the Board, which had limited the life of the landfill permission to a period of two years. Mr. Rooney refers to the fact that the Western Regional Fisheries Board also lodged an appeal against this development at the time, relating to its concerns regarding the impact of the proposed development on the Corrib and other matters of that nature.

Mr. Rooney refers to the fact that on 16^th August, 1999 he received a letter stating that the Board could only have regard to matters other than those relating to the risk of environmental pollution from the activity. He says that on the 1^st October, 1999 it was intimated that the Board would not determine the appeal until in or about the 4^th February, 2000. He says that he did not hear from the Board until by letter of 23^rd December, 2000 he was informed that the appeal had been dismissed because the Board considered that it should not be considered further by it. The letter from the Board referred to the nature of the appeals as pertaining to the risk of environmental pollution and it referred to s. 54 of the Act of 1996.

Mr. Rooney takes issue with the Board on this approach but he does concede that at least part of the proposed development, namely that relating to landfill is a matter which should be the subject matter of a waste licence application. However, his contention is that with regard to other matters the Board should have entertained his appeal.

Mr. Rooney expresses concern about the effect of the decision of the Board which enables the County Council to make a final decision and to issue a final grant and he refers to the fact that the decision of the County Council has a number of conditions which clearly relate to the risk of environmental pollution from the proposed development. His contention is that the decision of the County Council is invalid, ultra vires and void.

Mr. Rooney expresses concern that the effect of the decision of the Board is to enable the Corporation to recommence dumping operations on the site, notwithstanding the earlier decision of the Board. He indicates that the County Council has been joined in these proceedings in circumstances where its decision is, subsequent to the decision of the Board of 22^nd December, 1999, now a valid and subsisting decision which he contends is clearly ultra vires and void.

A statement of opposition has been filed on behalf of Board in which the following grounds are advanced:-

1. It is denied that the first named respondent erred in law as alleged or at all.

2. The issues raised on the appeal before the first named respondent and the subject of the first named respondent's decision concerned the risk of environmental pollution from an activity required to be licensed under the provisions of the Waste Management Act, 1996. The first named respondent is prohibited by s. 54 of the said Act of 1996 from considering such issues. The first named respondent dismissed the said appeals pursuant to the provisions of s. 14(1) of the Local Government (Planning & Development) Act, 1992 on being satisfied that the said appeals should not be further considered by it.

3. It is denied that the said appeals raised issues other than issues relating to the risk of environmental pollution from the said activity.

4. In the premises, it is denied that the first named respondent determined the planning application of the first named notice party or confirmed the decision of the second named respondent or decided that the determination of the second named respondent should issue in unaltered form as alleged or at all. The consequences of the dismissal of an appeal are not a matter to which the first named respondent can have regard under the provisions of s. 14 of the said Act of 1992.

5. In circumstances where the first named respondent could not validly consider the issues raised on the said appeals, it is denied that the first named respondent had jurisdiction to consider the validity of the planning application of the first named notice party which formed the basis of the decision of the second named respondent including the alleged requirement for an environmental impact statement and/or the alleged defects in the published notice. Further and without prejudice to the foregoing, in the absence of a power to consider the issues raised on the said appeal, it is denied that the first named respondent had jurisdiction to declare that the said planning application was invalid (which invalidity is not admitted).

6. The alleged or any breach of natural or constitutional justice is hereby denied. In reaching the said decision under s. 14 of the Act of 1992, the first named respondent followed all necessary and appropriate statutory procedures including inviting submissions from the applicants which the applicants failed to furnish to the first named respondent within the stipulated statutory time period.

7. It is denied that the first named respondent made the alleged or any determination in respect of the totality of the first named notice party's planning application. The decision of the first named respondent under s.14 of the Act of 1992 was based on the issues raised on the said appeals.

8. The first named respondent does not have jurisdiction to determine if the grant of planning permission of the second named respondent was ultra vires as alleged (which said ultra vires is not admitted). It is denied that the first named respondent was under the duty alleged at para. 24 of the Statement of Grounds or was bound to consider the issue of res judicata as alleged or at all.

9. It is denied that the decision of the first named respondent was ultra vires.

10. It is denied that the decision of the first named respondent was unreasonable.

Affidavits sworn by Ann C.M. Quinn, Deputy Chairman and member of the Board and by Elizabeth Dolan, Senior Administrative Officer of the Board in support of these grounds have been filed.

Ms. Quinn says that it was the view of the Board that all of the grounds of appeal related to the risk of environmental pollution as defined in s. 5 of the Act of 1996 and the Board determined that the issues raised by the applicants were matters which fell to be determined by the E.P.A. under the provisions of the Act of 1996 in respect of the operation of the landfill dump by the Corporation at this location.

Ms. Dolan indicates that Mr. Rooney's allegations of non compliance with the earlier planning permission, the unauthorised development, and the alleged failure to enforce the conditions of the said permission are matters which the Board does not have power to investigate nor require to be enforced.

Ms. Dolan indicates that at the date of the granting of the temporary permission on the 9^th April, 1997 the provisions of the Act of 1996 had not been commenced in relation to local authority landfill and consequently the Board was not constrained at the time by the prohibition contained in s. 54 of the Act of 1996 from considering issues raised in the earlier appeal which concerned the risk of environmental pollution arising from the landfill the subject of the permission. Ms. Dolan indicates that the existence of the temporary permission granted in 1997 has no bearing on the fact that at the time of the appeals the subject of these proceedings, the licensing and the monitoring of local authority landfill was, under statute, a matter for the E.P.A. and in planning terms the Board could not consider the grounds advanced by either the applicants or the Western Regional Fisheries Board.

Ms. Dolan denies that the Board refused to consider all grounds of appeal on the basis that some of the grounds of appeal raised related to the risk of environmental pollution. She says that in fact the Board reached the conclusion that all the grounds of appeal related to the risk of environmental pollution and therefore, there were no grounds of appeal which could properly be considered by the Board.

Ms. Dolan denies that Mr. Rooney made extensive or specific submissions on the retention of structures which had been constructed without planning permission. She says that he did make submissions objecting on environmental grounds to the retention of the waste which had been dumped. She also denies that Mr. Rooney made any submissions about the state of the roads or the traffic hazard in his grounds of appeal.

Ms. Dolan indicates that notwithstanding the view taken by the Board that all the grounds of appeal related to the risk of environmental pollution, the Board gave the applicants the opportunity of making submissions or arguments to the effect that the said grounds did not relate solely to the risk of environmental pollution and that any such submissions made within the period specified by the Board under s. 13 of the Act of 1992 would have been admissible and would have been considered by the Board. In this regard she refers to the letter of the 2^nd December, 1999 from the Board. She points out that in fact the Western Regional Fisheries Board did make a submission in response to the letter and this submission was considered by the Board before it decided to proceed to dismiss the appeals.

The view taken by the Board is that in the circumstances of such a dismissal of an appeal on the basis that it does not have jurisdiction to consider any of the grounds raised, it does not fall to the Board to assess or determine the validity of the planning application including matters such as whether an environmental impact statement was required or whether if provided it was adequate, or whether the notices are sufficient. The view taken by the Board is that it is a matter for the planning authority to ensure compliance with the application regulations.

Ms. Dolan indicates that it is recorded on the Board's file that at the time the appeals were before the Board the E.P.A. had received and were considering a waste licence application from the corporation.

A statement of opposition has been filed on behalf of the County Council in which the following grounds are advanced:-

1. This respondent was legally obliged to make a decision on planning application 98/4047 submitted by Galway Corporation on the 6^th November, 1998 which was a valid application for planning permission. Galway County Council's decision to grant planning permission on the 6^th May, 1999 was a valid decision and following the dismissal of the appeal lodged by the first named applicant herein An Bord Pleanála, Galway County Council was obliged by law and did grant planning permission to Galway Corporation on the 11^th January, 2000. The applicants having exhausted their appeal, Galway County Council was obliged by law to grant planning permission to Galway Corporation and same is a valid grant of planning permission.

2. This respondent was legally obliged to make a decision on planning application 98/3858 submitted by Galway Corporation on the 12^th April, 1999 which was a valid application for planning permission. Galway County Council's decision to grant planning permission on the 26^th May, 1999 was a valid decision and following on the dismissal of the appeal lodged by the first named applicant herein to An Bord Pleanala, Galway County Council was obliged by law and did grant planning permission to Galway Corporation on the 11^th January, 2000 the applicants having exhausted their appeal. Galway County Council was obliged by law to grant planning permission to Galway Corporation and it is a valid grant of planning permission.

3. Planning application 98/3858 is and was at all material times a valid application for the purposes of the Local Government (Planning and Development) Acts, 1963 to 1999 and was made in accordance with the regulations made thereunder. Alternatively, if same did not comply within the said Acts or the said regulations, same is not a fatal flaw and the decision of An Bord Pleanala made on the appeal in respect of same constitutes a valid decision notwithstanding any alleged defects in the planning application itself such that the grant of planning permission following on the dismissal of the said appeal by An Bord Pleanala is a valid grant of planning permission.

4. The conditions attached to planning permission 98/3858 are in accordance with the provisions of the Local Government (Planning and Development) Acts, 1963 to 1999.

5. This respondent replies to the grounds upon which relief is sought by the applicants as per para. (e) of their statement required to ground application for judicial review dated the 22^nd February, 2000 as follows:-

(2) Insofar as the applicants challenge the decisions of An Bord Pleanala in respect of the applicants appeal from Galway County Council decisions to grant planning permission in respect of planning applications 98/3858 and 98/4047 this respondent contends that it was legally obliged, following upon the dismissal of the said appeals by An Bord Pleanala to grant planning permission and contends that the decision of An Bord Pleanala in each appeal was valid and will rely, at the hearing of this application, on the Statement of Opposition filed for and on behalf of An Bord Pleanala, the evidence set out in the affidavit filed for and on behalf of An Bord Pleanala and the legal arguments advanced on its behalf.

6. Planning applications 98/3858 and 98/4047 submitted by Galway Corporation to Galway County Council are valid applications for planning permission. If same fail to comply with the requirements of the Local Government (Planning and Development) Acts 1963 to 1999 or the regulations made there under same does not invalidate the said planning applications nor the decisions to grant planning permission made by Galway County Council in respect of same nor the decision of An Bord Pleanala in respect of the appeals lodged in respect of same nor the grant of planning permission in each case by Galway County Council. If there was any breach of the regulations, same were not mandatory regulations and did not invalidate the planning application concerned.

7. The applicants were afforded every opportunity to make valid submissions in respect of the appeals which they lodged in respect of Galway County Council's decision to grant planning permission in respect of planning applications 98/3585 and 98/4047 but they failed to make proper submissions within the time prescribed by law, apart from those submissions which were properly dealt with by An Bord Pleanala. The respondent refutes the contention that An Bord Pleanala failed to afford the applicants the necessary statutory protection in order to allow submissions as pleaded at para.14.

8. The decision of An Bord Pleanala in respect of each appeal is not inconsistent with prior determinations of An Bord Pleanala relating to the landfill in question. The application before Galway County Council pursuant to planning applications 98/3858 and 98/4047 were new planning applications and were materially different to previous planning applications and both Galway Count Council and An Bord Pleanala were statutorily obliged to deal with these applications once submitted. There is no basis for contending that the respondent's decisions were ultra vires their powers.

9. The Local Government (Planning and Development) Regulations 1994 were fully complied with insofar as it is contended that planning application 98/4047 should have been accompanied by an environmental impact assessment or an environmental assessment should have been prepared or carried out as same was not required in this planning application and consequently the newspaper notice dealing with this application did not require a statement that an environmental impact assessment was required and therefore was not in breach of European Communities Council's Directive 85/337 EEC or European Communities (Environmental Impact Assessment) Regulations 1989 to 1999.

10. Galway County Council's grant of planning permission does not fail to conform with the Local Government (Planning and Development) Acts 1963 to 1999 with regard to the conditions therein contained. Following upon the decision of An Bord Pleanala, Galway County Council's decision to grant planning permission on the 11^th January, 2000 had to be granted by Galway County Council in its entirety. It was not ultra vires its powers. If any of the conditions in the said grant of planning permission are ultra vires Galway County Council's powers, same are not fundamental to the granting of the permission for the proposed development and are severable and do not render the planning permission itself invalid or void.

11. There were no errors or errors of law on the face of the record and Galway County Council did not have regard to irrelevant material in determining the application for planning permission and the reasons granted for the conditions in the said planning permission are not fundamentally or at all void or invalid.

12. The grant of planning permission by Galway County Council did not contain conditions which were ultra vires its powers and did not refer to matters which related solely to the risk of environmental pollution. The conditions attached to the planning permission are valid and matters properly the matters of planning conditions.

13. This respondent is a stranger to the averments set out in the various paragraphs of the applicant's statement herein whereby complaint is made against the decision of An Bord Pleanala and does not concede these contentions and awaits formal proof of same, further this respondent will rely on the Statement of Opposition and evidence adduced by An Bord Pleanala in refuting the applicant's claim herein.

14. Without prejudice to the foregoing, if the newspaper notice submitted by Galway Corporation was defective or failed to refer to an environmental impact assessment, this respondent pleads that the applicant was not in any way prejudiced nor were members of the public so prejudiced in any way and also that it did not affect the bona fides of the planning application and had no bearing on the decision of Galway County Council to grant planning permission in respect of the development the subject matter of the planning application. Members of the public were not misled by the application and this respondent pleads de minimus causal lex non curat and prays this honourable Court to exercise its discretion not to deem the planning application itself or the decision to grant planning permission pursuant to same invalid by virtue of the alleged or any breach of the said regulations as pleaded at paras. 12 or 16 of the applicant's statement herein. No injustice occurred by virtue of any such omission and the decision to grant planning permission was made on the merits without any party being misled and in particular without the planning authority being misled in any material way.

15. Further the respondent pleads that if there was any defect in the planning application, or the public notice accompanying same, An Bord Pleanala were fully aware of all matters relating to the decision which it had to make, the application before An Bord Pleanala was a valid application and its decision is binding and final and is not defective in any way.

16. The applicant has failed to show either in its application or on the facts relied upon in the affidavits submitted by them in support of their application any substantial grounds for contending that the defendants failed to comply with there statutory requirements in any regard or that they acted in breach of the applicant's rights.

An affidavit has been sworn by Liam Kavanagh a planner with the County Council in which he denies that it failed to comply with orders of the High Court. He points out that the County Council was not a party to the action referred to by Mr. Rooney and did not fail in any way to comply with orders of the High Court. It appears that in this regard the applicants confused the position of the Corporation with that of the County Council. Mr. Kavanagh refers to the fact that an application for a waste licence which was made in respect of the leachate lagoon by the Corporation to the E.P.A. was required to be amended. Mr. Kavanagh refers to the conditions imposed by the County Council in its decision and indicates the justification put forward for same. He indicates that the condition dealing with the question of sludge inserted in the planning permission for the leachate lagoon was in the nature of a warning to the developer that such sludge should be deposited in accordance with; "the rights of the E.P.A." but that the word 'rights' should read 'requirements'. While it is conceded that the landfill operations must be the subject of a licence from the E.P.A., it is not conceded that the remainder of the development, namely that pertaining to the leachate lagoon, is such that an environmental impact assessment is required. Nevertheless, Mr. Kavanagh indicates that as a matter of fact the development the subject of planning application 98/4047 was taken into account in the environmental impact statement lodged with planning application 98/3858.

The applicant has sworn a further affidavit in which he indicates his contention that as part of the development related to retention it could have been covered by the waste licence application. He also refers to issues raised by the applicants relating to visual impact which he believes to be a planning issue that should have been considered by the Board. However, for the most part this affidavit is argumentative in nature and does not purport to advance factual matters upon which argument might be advanced.

The grounds of appeal advanced to the Board were set out in correspondence to the Board in the form of a letter dated 1^st June, 1999 and a further document of 26^th June, 1999 headed 'Castlegar Concerned Community' . The relevant parts of these letters read as follows:-

The Hermitage,

Carrowbrowne,

Castlegar,

Co. Galway.

1/6/99.

An Bord Pleanála,

Floor 3,

Block 6 and 7,

Irish Life Centre,

Lower Abbey Street,

Dublin 1.

Planning reference 98/4047.

Dear Sirs,

Whilst we are not objecting in principle to the treatment tanks which should have been in place since April, 1998 reference PL 96/1487. We are objecting in the strongest terms to the relocation of the treatment tanks from the original in the North/West corner of the Dumpsite in Carrowbrowne to a location just outside the Dumpsite.

We see no logical reason to relocate the treatment tanks outside the dumpsite for the following reasons:-

1) The current landfill has a secondary containment system in the form of a leachate collection system that would offer protection to environs in the event that system failed or ruptured. We can find no such secondary containment system in the new planning application.

2) The size of the treatment tanks has been reduced from 50 metres to 30 metres long. This is unacceptable. It is our understanding that the longer the leachate is processed in the tanks, the lower the toxic levels will be.

3) There are no proposals to cover the tanks. A similar treatment system was installed in Kill Landfill site. Due to the strong smell coming from the process, the local authority had to cover the tanks. Uncovered tanks would pose an immediate safety hazard as a Traveller Hardstand is within a few hundred yards.

4) The proposed new location places the treatment tanks very close to a national road N 84 with no natural cover, whereas, the 1996 planning permission had the tanks located in the North West Corner of the landfill site and hidden behind an existing business and out of view.

We believe that the treatment tanks should be constructed in accordance with the 1996 planning reference number 96/1487. We request that you reject this planning application and that you insist that construction begin immediately as per the planning permission already granted by An Bord Pleanála as untreated leachate is currently being pumped into Galway Bay at the rate of 300 cubic metres per day (66,000 Gallons per day).

….

Yours truly,

Desmond Rooney.

Castlegar Concerned Community

The Hermitage,

Carrowbrowne,

Castlegar,

Co. Galway.

June 22^nd 1999.

Objection to the dump planning permission as granted by Galway County Council to Galway Corporation planning reference 98/3858.

We are objecting to the granting of planning permission for the following reasons:-

1) A temporary planning was granted in April, 1997 for two years or 150,000 tonnes whichever came sooner when the dump was to close by 9^th April, 1999. Galway Corporation blatantly defied the conditions as specified by An Bord Pleanala and had to be closed down by a High Court Order. (See enclosed copy of High Court Order and Judgment).

2) At this stage we have no confidence in Galway Corporation who do not comply to planning law and we have no confidence in Galway County Council who have failed to do their role by allowing Galway Corporation license not to comply.

3) As a community we have had to endure the worst possible consequences of bad planning since 1972 through pollution and contamination. There is strong scientific evidence to suggest that there are health risks to people living within a certain radius of dumps. Up to recent times there were absolutely no controls on the types of waste in Carrowbrowne. Nobody can categorically state exactly what has been dumped there in the past 27 years. We will no longer accept or tolerate any more dumping in our community and we ask An Bord Pleanala to reject this planning application and shut it down once and for all.

4) We say and believe that there does not appear to be any accountability at any level as the planning conditions specified by An Bord Pleanala are not implemented by either Galway Corporation or Galway County council. They do not even adhere to the High Court orders by Mr. Justice Peter Kelly in 1998 and Mr. Justice Ronan Keane in 1995. We say and believe that when a body like Galway Corporation give an undertaking to the High Court and then fails to honour that undertaking, then they cannot be trusted and must not be allowed back into the Carrowbrowne dump site.

5) It is now obvious with the granting of this planning permission to Galway Corporation by Galway County Council that they are now asking An Bord Pleanala to admit that they were wrong in granting a temporary planning permission for two years instead of five, which they originally sought in 1996.

6) An Bord Pleanala clearly recognised that this dump was located in a very environmentally sensitive area and required very careful and detailed remedial and protective measures to prevent the contamination of adjoining land and waters. To this day Galway Corporation has not complied with the planning permission granted in 1997 by An Bord Pleanala and a High Court order directing them in December 1998.

7) Galway Corporation had never intended to leave Carrowbrowne despite An Bord Pleanála's decision to give a temporary planning whilst they sought an alternative site. Note attached affidavit from Galway Corporation engineer Gary O'Lochlainn where he acknowledges having an alternative site in Ballinasloe, they still refuse to leave Carrowbrowne knowing how sensitive a site it is. We believe that Galway Corporation is totally untrustworthy. In Mr O'Lochlainn's supplemental affidavit dated 9^th December, 1998, he states, at Para. 22 they would construct a perimeter drain around the entire site and that they would build same around the perimeter of the site in accordance with the planning permission. Galway Corporation actually filled in the perimeter drain completely and the complete east side of the site. In Mr. Gerry Monaghan's affidavit dated 19^th November, 1998 he states at para. 9, that it would take eighteen months to two years to install all of the amenities contained in condition number 6 PL reference 96/1487. He states that these works must be taken sequentially and will be completed by April, 1999.

8) Expert opinion has concluded that this site is unsatisfactory and is a serious risk of environmental damage.

9) Galway Corporation when they were granted temporary planning permission in 1997 was instructed to construct a leachate treatment plant as per their own plans and E.I.S. This has not been constructed. The road has not been installed, the bund was not complete, and the fence was not installed.

10) Now, Galway County Council have just granted planning permission to Galway corporation to change the specification of these tanks and to relocate them to a different part of the site, they did this so that they could use the space to apply for this planning permission to dump 225,000 tonnes of waste.

11) An Bord Pleanala considered that so essential was this leachate plant that it should have been constructed immediately when the 1997 planning permission was granted. Instead Galway Corporation decided to pump it untreated into Galway Bay. We say and believe that the 1998 leachate collection system is ineffective and that further information is required to ascertain the effectiveness of the collection system.

12) In conclusion we are requesting:-

a) That An Bord Pleanala refuse permission,

b) That An Bord Pleanala provide our committee with an oral hearing so that we can present our case to demonstrate why An Bord Pleanala should not allow this planning permission to proceed.

…

Yours sincerely,

______________

Desmond Rooney

Submissions:-

On behalf of the applicants it was submitted that the notice published by the Corporation with regard to its planning application failed to comply with the requirements of art. 15 (2) of the Regulations of 1994 which provides:-

15. (1) A notice published pursuant to article 14 (1) (a) shall be published in a newspaper circulating in the district in which the land or structure to which the proposed planning application relates is situate, shall contain as a heading the name of the planning authority to which the planning application will be made and shall state—

( a ) the name of the applicant,

( b ) the nature of the application (that is, whether it is for a permission, an outline permission or an approval),

( c ) the location of the land or the address of the structure to which the application relates (as may be appropriate),

( d ) (i) the nature and extent of the development (including, where the application relates to development consisting of or comprising the provision of dwellings, the number of dwellings to be provided), or

(ii) where the application relates to the retention of a structure, the nature of the proposed use of the structure and, where appropriate, the period for which it is proposed to retain the structure, or

(iii) where the application relates to the continuance of any use, the nature of such use and of the previous use,

( e ) where the application will be accompanied by an environmental impact statement in accordance with article 24 (1):

(i) that such a statement will be submitted to the planning authority with the application, and

(ii) that the environmental impact statement, and any further information in relation to the proposed development which may be furnished to the planning authority in the course of the consideration of the application by the planning authority, will be available at the offices of the planning authority.

(2) Where a planning application relates to development which comprises or is for the purposes of an activity in relation to which a licence under Part IV of the Environmental Protection Agency Act, 1992 is required, a notice published pursuant to article 14 (1) (a) shall, in addition to the requirements of sub-article (1), indicate this fact.

The requirement with regard to a waste licence was inserted by S.I. 261 of 1997.

It is submitted that it is clear from the notice published that it contravened art. 14 (1) (a) and that no member of the public would have been aware of the requirement of this development to obtain a waste licence pursuant to the Act of 1996 and therefore could not have been aware of the nature of the limitations on any appeal to be submitted.

Counsel submits that the requirement in question was mandatory as per the decision of the Supreme Court in Monaghan U.D.C. v. Alf-a-Bet Promotions Ltd. [1980] I.L.R.M. 64, Electricity Supply Board v. Gormley [1985] I.R. 129 and Dooley v. Galway County Council [1992] 2 I.R. 136.

It is submitted that this failure is sufficient to invalidate the impugned decision by virtue of the failure to comply with the statutory requirements set down in the legislation.

It is further submitted that the decision of the planning authority is consistent with there being no application for a waste licence necessary and it was this decision given on the 6^th May, 1999 which is the document upon which the appeal is lodged to the Board.

Counsel complains about the inclusion in the second condition of a reference to the disposal of sludge, a matter which, it is submitted is expressly prohibited in circumstances where a waste licence is required.

Counsel refers to s. 54 (3) of the Act of 1996 which provides:-

"54.—

(3) Notwithstanding section 26 of the Act of 1963 or any other provision of the Local Government (Planning and Development) Acts, 1963 to 1993, where a waste licence has been granted or is or will be required in relation to an activity, a planning authority or An Bord Pleanála shall not, in respect of any development comprising or for the purposes of the activity—

( a ) decide to refuse a permission or an approval under Part IV of the Act of 1963 for the reason that the development would cause environmental pollution, or

( b ) decide to grant such permission subject to conditions which are for the purposes of prevention, limitation, elimination, abatement or reduction of environmental pollution from the activity,

and accordingly—

(i) a planning authority in dealing with an application for a permission or for an approval for any such development shall not consider any matters relating to the risk of environmental pollution from the activity;

(ii) An Bord Pleanála shall not consider any appeal made to it against a decision of a planning authority in respect of such an application, or any submissions or observations made to it in relation to any such appeal, so far as the appeal, or the submissions or observations, as the case may be, relates or relate to the risk of environmental pollution from the activity."

Counsel submits that condition (2) of the planning register reference no. 98/4047 is in essence the very condition precluded as it requires that the sludge from the proposed development be disposed of in an environmentally acceptable manner and this form of condition and the considerations given to its formulation, is expressly prohibited by the provisions of s. 54.

It is submitted that the applicants appeal was based on the decision to grant permission which related to matters which, by virtue of this section, could not be considered by the local authority and appear as errors of law on the face of the document which the County Council directed to be issued.

It is submitted that the inclusion of matters on the appeal to which the Board could not have regard arises from the failure on the part of the Corporation to publish the appropriate notice incorporating a reference to the Act of 1996. It is further submitted that this arises from the decision of the County Council to consider matters relating to the risk of environmental pollution and to insert conditions in this regard in the decision under appeal. It is submitted that by the time the Board wrote out expressing concerns as to the content of the appeal, the applicants could not at that stage raise other or different grounds of appeal in regard to the submission already made having regard to s. 4(3) of the Act of 1992, which provides:-

"(3) Without prejudice to section 9, an appellant shall not be entitled to elaborate in writing upon, or make further submissions in writing in relation to, the grounds of appeal stated in the appeal or to submit further grounds of appeal and any such elaboration, submissions or further grounds of appeal that is or are received by the Board shall not be considered by it."

It is submitted that the appeal lodged on behalf of the applicants, while it refers to issues of environmental pollution, it is not solely concerned with those matters.

Counsel refers to the inclusion in the appeal of the reference to the tanks being located close to the national route N 84 with no natural cover. It refers to the earlier decision of the Board which located the tanks in the north western corner of the site, hidden behind an existing business and out of view. It is submitted that these are matters which relate to visual impact and which are not caught by the exclusion in s. 54, not being matters relating to the risk of environmental pollution, having regard to the definition of 'environmental pollution' in s. 5 of the Act of 1996 which provides:-

""environmental pollution" means, in relation to waste, the holding, transport, recovery or disposal of waste in a manner which would, to a significant extent, endanger human health or harm the environment, and in particular—

( a ) create a risk to waters, the atmosphere, land, soil, plants or animals,

( b ) create a nuisance through noise, odours or litter, or

( c ) adversely affect the countryside or places of special interest;"

On this basis it is submitted that the conclusion of the Board that there were no matters raised on the appeal other than those relating to the risk of environmental pollution was wrong. It is submitted that in treating the visual impact of the tanks as a matter relating to the risk of environmental pollution the Board either misconstrued the section or alternatively made a decision which is irrational.

Counsel submits that the issue of what falls within the definition in s. 5 must be determined on the basis of statutory interpretation, and, it is entirely within the jurisdiction of the court to determine and it is not a matter to which the principles arising from O'Keeffe v. An Bord Pleanála [1996] 1 I.R. 39 could apply, such that the Board might have any discretion in the matter.

Counsel refers to s. 26 (5) (b) of the Act of 1963 which provides:-

"( b ) Subject to the following provisions of this subsection, where an appeal is brought from a decision of a planning authority and is not withdrawn, the Board shall determine the application as if it had been made to the Board in the first instance and the decision of the Board shall operate to annul the decision of the planning authority as from the time when it was given; and the provisions of subsections (1) and (2) of this section shall apply, subject to any necessary modifications, in relation to the determination of an application by the Board on appeal under this subsection as they apply in relation to the determination under this section of an application by a planning authority."

While the appeal referred to the history of the site, it is submitted that the manner in which previous decisions were made in respect of the site and the planning history of the site is a matter to which the Board could have regard, especially when one has regard to the provisions of s. 26 of the Act of 1963. Counsel asks rhetorically, 'What has changed to justify a grant of permission for a further period beyond the period of two years previously stipulated?' Counsel submits that there must be a change of circumstances to warrant the fresh decision. Counsel submits that a consideration of this matter does not involve a consideration of a matter relating to the risk of environmental pollution. Counsel submits that the mere fact that the licensing function has been given to the E.P.A. is not sufficient to constitute a change of circumstances. With regard to the issue of whether a matter can be considered to be res judicata counsel refers to The State (Kenny & Hussey) v. An Bord Pleanála (Unreported, Supreme Court, 20^th December, 1984) where McCarthy J. queried how a planning authority could be permitted to come to a new or different view when the circumstances do not change.

With regard to the inclusion in the planning decision of grounds which related to the risk of pollution, counsel submits that this suggests that the County Council had regard to the previous history of the site. Counsel submits that the Board could not have rejected this ground of appeal on the basis that it was precluded from considering same by the provisions of s. 54 (3) of the Act of 1996.

Furthermore, counsel submits that the validity of the notices issued at the time of the planning application is clearly a matter which is other than that precluded by s. 54 (3). It is submitted that the application was invalid in the circumstances outlined. Counsel questions the entitlement of the Board to ignore irregularities in the planning application where it decides to dismiss the appeal itself on the basis that the matters raised cannot be considered by it.

It is further submitted that the Board has discretion under s. 13 of the Act of 1992 to take matters into account other than those raised by the parties or by any person who has made submissions or observations to the Board in relation to the appeal. On this basis it is submitted that the Board had jurisdiction, and was required when the appeal was lodged, to ensure that any appeal or application before it complied with the statutory requirements before such appeal was determined. It is submitted that the Board did not direct its mind to the validity of the application and ought to have done so, particularly in circumstances where it sought to invoke the provisions of s. 54 and to consider the appeal lodged in the context of this statutory requirement. It is submitted that s. 54 allows such an appeal to be considered and only those aspects caught by the definition of s. 54 are excluded. Counsel places reliance on the fact that the hearing to the Board is a hearing de novo under the terms of s. 26 (5) (b) of the Act of 1963. Counsel submits that it is hard to see how a matter of non compliance with the relevant regulations can be considered as other than a matter of proper planning and development to which the Board was required to have regard. While counsel concedes that the Board cannot be expected to 'comb out' irregularities, it is submitted that the failures identified in this case must have been obvious to the Board.

It is submitted that the proposed development is part of an integrated application for the development of a waste treatment facility and part of this was for a sludge treatment system under application reg. ref. no. 98/4047. Under the further application 98/3585 the planning authority applied to retain waste already deposited in addition to some ancillary matters. It is submitted that these matters were matters related to a development of a landfill operation which is of such a size and scale as to exceed the threshold specified in the First Schedule to the European Community (Environmental Impact Assessment) Regulations, 1989 as amended. It is submitted that it is not possible to separate particular projects so as to apply incrementally to extend or modify developments to which these regulations apply. On this basis it is submitted that the making of two separate applications for a unitary development which exceeds the requirements specified in the regulations consequently requires an environmental impact assessment.

With regard to the retention of waste, counsel queries how an application for retention of waste can be subject to the requirement of a waste licence.

Finally, with regard to the applicants' final ground pertaining to the alleged failure of the Corporation to have prepared an environmental impact statement, counsel refers to the European Community (Environmental Impact Assessment) Regulations, 1989. It is submitted that it was not possible to split the planning application into two parts to avoid the obligations arising under these regulations and the underlying Council Directive of the European Communities.

Counsel refers to Shannon Regional Fisheries Board v. An Bord Pleanála [1994] 3 I.R. 449 in support of the contention that the Board should not have determined the appeal in blinkers and should not have disregarded the requirement for an environmental impact statement. It is submitted that at least it should have sought the opinion of this Court as to whether an environmental impact statement was required for the entire development in the circumstances.

On behalf of the Board Ms. Nuala Butler, having traced the background to this application, indicated that subsequent to the decision of the Board in 1997 the provisions of the licensing scheme under the Act of 1996 came into force as regards local authority landfill. Consequently, it is submitted that by the time the Board came to consider the planning appeals it no longer had jurisdiction to consider the various environmental issues which had formed the basis of its 1997 decision and in particular the conditions attaching to that permission, as the jurisdiction in question had been transferred to the E.P.A. as licensing authority under the Act of 1996.

With regard to the leachate lagoons it is pointed out that the site in question is immediately adjacent to but not part of the existing landfill.

Counsel refers to the provisions of s. 54 of the Act of 1996 and in particular sub-s. (3) thereof, together with the definition of "environmental pollution" in s. 5 of the Act.

With regard to the case advanced by the applicants that retention of waste already dumped should be looked at solely as a planning matter and not as a matter subject to the requirement of waste licensing, counsel refers to s. 39 (1) of the Act of 1996 which provides:-

"39.—(1) Subject to subsections (4) and (7), a person shall not dispose of or undertake the recovery of waste at a facility, on or after such date as may be prescribed, save under and in accordance with a licence under this Part (in this Act referred to as a "waste licence") that is in force in relation to the carrying on of the activity concerned at that facility."

and to s. 4 (3) which defines the disposal of waste by reference to the Third Schedule to the Act, which lists the activities comprising disposal including landfill but also the permanent storage of waste and the blending, mixture, repackaging and storage of waste prior to its submission to any of the other activities which constitute disposal. Counsel points out that the dates prescribed pursuant to s. 39 (1) are now contained in the Waste Management (Licensing) (Amendment) Regulations, 1998 (S.I. 162 of 1998) and in this regard the prescribed date in respect of a local authority landfill is 1^st October, 1998.

Counsel refers to s. 14 of the Act of 1963 and in particular the words at sub-s.(1) (b) "the Board is satisfied that in the particular circumstances the appeal should not be further considered by it" together with the provisions of s. 26 (5) (b) and (c) of the Act of 1963.

With regard to the particular issues raised on this application it is submitted in the first place that all the matters raised on the appeal are capable of falling within the definition of "environmental pollution" as defined in the Act. It is pointed out that the only issue raised on appeal 98/4047 relating to the lagoons was the location of the leachate treatment tanks. Counsel submits that on a closer examination of the arguments advanced by Mr. Rooney, his concerns as to the location of the tanks are based on environmental reasons; namely concern as to the existence of a secondary containment system as a fall back in the event of a failure; reduction in the size of the tanks having a knock-on effect on toxic levels; a health and safety issue concerning possible accidents in the event that the tanks are not covered and the lack of cover on the tanks being close to the N 84 having an adverse effect on the countryside.

It is submitted that the issues raised on the other appeal 98/3858 are more diffuse but seem essentially to cover breaches of the previous temporary planning permission and compliance issues; the location of the landfill in an environmentally sensitive area; a change in location of the leachate tanks to permit additional landfill and submissions as to the effectiveness of the leachate control system. While the applicants emphasise the enforcement and compliance issues as planning issues, it is submitted that the particular non compliance in question here has to be seen in the context of s. 54 of the Act of 1996 and in particular sub-s. (1) thereof which provides that conditions attached to a planning permission in respect of a licensable activity cease to have effect on the grant of a waste licence. It is submitted that as the non compliance asserted and proved related to the failure to comply with conditions imposed for the purposes of the environmental management of the facility, this non

compliance is properly considered as an issue to be addressed in the licensing procedure.

With regard to the conditions imposed by the County Council counsel submits that that relating to landscaping is permissible and that the requirement to comply with the requirements of the E.P.A. is meaningless where that is in fact a legal requirement. Counsel submits that the inclusion of the conditions does not take away from the validity of the planning decisions.

With regard to the argument that the Board determined the lifespan of the landfill in 1997 and that the same is now res judicata it is submitted that the principle of res judicata does not apply where there has been a material change since the earlier determination, the material change being the assumption of a waste licensing function in respect of the landfill by the E.P.A. on the 1^st October, 1998.

With regard to the application of s. 14 to the point raised with regard to the consequences of the Board's decision on the County Council's grant of planning permission with conditions attached, which conditions are asserted to be invalid, it is submitted that the application of s. 14 is based on a determination by the Board as to the nature of the appeal and not on the legal validity of any aspect of the planning authority's decision. It is submitted that the Board does not have jurisdiction to judicially review the decision of the planning authority. Either the appeal raises a planning issue, which must be considered or it does not. It is submitted that the Board cannot be required to consider an appeal which does not raise a planning issue which may be properly considered for the purposes of curing an alleged invalidity in the decision from which the appeal is taken. It is pointed out that the applicants could in judicial review proceedings challenge the conditions in question. Further, counsel points out that no issue was raised by the applicants on the appeal as to the validity of the conditions or with regard to the nature of the notice given or whether an environmental impact statement was required in the case of all parts of the proposed development.

Counsel submits that there was no requirement to have an environmental impact statement or assessment with regard to the leachate lagoon per se. It is submitted that it was required for and provided in the case of the landfill itself. Counsel refers to the existence of two planning applications and the entire was subject to one waste licence.

With regard to the issue as to whether planning application 98/4047 was invalid by reason of a failure to refer to the waste licence application in the public notices and the contention that the Board should have determined the application de novo on the appeal for the purpose of requiring fresh notices, counsel points out that no issue was raised by the applicants on the appeal as to the validity of the site notices, nor was such an issue raised in response to the s. 13 notices.

It is submitted that it is only when a legitimate planning issue is raised on the appeal that the Board is obliged to treat the application as if it were made to it de novo. It is submitted that this approach is consistent with a reading of s. 26 (5) (b) with s. 26 (5) (e) of the Act of 1963 as amended. It is submitted that as there was no planning issue to be considered by the Board, the sole purpose of the Board adopting the approach suggested by the applicants would be to carry out an exercise in the nature of a judicial review of the County Council's decision, including its preliminary decision as to the adequacy of the public notices.

It is submitted that there was no requirement for the development of the leachate lagoons to be the subject of an environmental impact assessment. While an affidavit has been sworn by Mr. Liam Kavanagh on behalf of the County Council, counsel refers to the fact that no issue has been taken of the averment in his affidavit that the development the subject of planning permission 98/4047 was taken into account in an environmental impact statement lodged with planning application 98/3858.

With regard to the final issue, namely the retention aspect of 98/3858, it is submitted that there is an air of unreality to the submission that the matter should have been considered by the Board as the waste licensing system does not operate retrospectively. Counsel submits that while it is true that the Act of 1996 does not expressly provide for retention applications, it does define the disposal of waste as including the permanent storage of waste. On this basis it is submitted that the permanent storage at Carrowbrowne of the waste which has already been landfilled (albeit in breach of the planning permission) is a disposal activity and is licensable as such. It is submitted further that if the retention permission were to be granted by the Board, it would not be empowered to attach any conditions to such grant to provide for the environmental management or control of the retained material. If retention were refused the blending, mixing, repackaging or the storage of the waste prior to its disposal elsewhere would itself be a licensable activity.

With regard to the submission that the errors alleged in the planning application were manifest, counsel submits that these matters were not manifest in any event. Counsel submits that the Board is not required to go beyond the grounds of an appeal when considering an appeal. Counsel submits that having regard to s. 14 of the Act of 1992 it is sufficient for the Board to examine the grounds of appeal themselves. Counsel further refers to the fact that the issues raised in the hearing were not in fact raised in the grounds of appeal to the Board.

Counsel submits that the revised statutory scheme was a material change which enabled the Board to consider the appeals notwithstanding its previous decision. The environmental issues remained to be addressed by the E.P.A. In light of these changes counsel submits that the matters raised on the appeal were not res judicata.

On behalf of the County Council it is submitted by Mr. Galligan that the circumstances where the applicants have not sought to impugn the decision of the County Council in the case of either of the planning applications at issue is such that no useful purpose would be served by this Court granting declaratory relief in relation to either of these planning applications. It is submitted that the validity or invalidity of the relevant applications can have no effect on the validity or invalidity of the grant of permission on foot thereof.

Having regard to the fact that the applicant seeks an order of certiorari quashing the grant of permission based upon the assertion that the decision of the County Council sought to impose conditions which were ultra vires the power of the respondents and referred in those conditions to matters related to the risk of environmental pollution, it is acknowledged that the dismissal of the applicants' appeal triggered the grant of permission by the County Council, but it is submitted that the applicants wrongly characterise the effect of the dismissal of the appeal as merely authorising the County Council to issue its final decision. It is submitted that the effect of the dismissal was the imposition of an obligation on the County Council to make the grant of permission "as soon as may be" after the dismissal in question. In this regard counsel refers to s. 26 (9) of the Act of 1963 which provides:-

"(9) ( a ) Where the planning authority decide under this section to grant a permission or approval—

(i) in case no appeal is taken against the decision, they shall make the grant as soon as may be after the expiration of the period for the taking by the applicant of an appeal or, in a case to which subsection (4) of this section applies, of the period for the taking of an appeal otherwise than by the applicant,

(ii) in case an appeal or appeals is or are taken against the decision, they shall not make the grant unless the appeal or appeals is or are withdrawn and, in that case, they shall make the grant as soon as may be after the withdrawal.

( b ) Where the Board decides on appeal under this section to grant a permission or approval, it shall make the grant as soon as may be after the decision."

Counsel refers to the fact that the applicants have only sought to quash the grant of permission and not the decision itself. It is submitted that the relevant grants are not amenable to judicial review having regard to the absence of a discretion being vested in the County Council to decide whether or not to issue the grant in the circumstances.

Counsel refers to the fact that the judicial review proceedings herein were served on the County Council on or about the 23^rd February, 2000 at a stage where the applicants were not in a position to challenge either the decision of the County Council made on the 26^th May, 1999 in relation to reg. ref. 98/3585 or the decision of the County Council made on the 6^th May, 1999 in relation to reg. ref. 98/4047. It is submitted that the applicants are in effect seeking to circumvent this difficulty mounting a challenge in relation to the grant of permission in each case. It is submitted that this challenge is misconceived, as a grant of permission by a planning authority cannot be challenged on the same grounds as a decision to grant permission by the same authority. It is submitted that in the latter case the non compliance of the planning application with the requirements of the planning regulations provides the ground for relief, as does the invalidity of any condition attached to the decision to grant permission. It is submitted that in the case of a grant of permission by a planning authority following the dismissal of the appeal by the Board, these grounds do not avail an applicant by reason of the fact that the planning authority is mandated to make the grant in the manner set out in s. 26 (9) of the Act of 1963.

Insofar as the Board determined the relevant appeals it is submitted that it follows that the decision of the County Council in each case stands annulled by virtue of s. 26 (5) (b) of the Act of 1963, as substituted by s. 3 (a) of the Act of 1992.

Insofar as the applicants seek a declaration that the application for planning permission in the case of reg. ref. 98/4047 is not a valid application, the ground relied upon in respect of this is that the public notice failed to indicate that an environmental impact statement was necessary and the failure in question is alleged to be a fundamental breach of the requirements of the Planning Acts and the regulations made thereunder and contrary to the requirements of Council Directive 85/337/EEC and the European Community (Environmental Impact Assessment) Regulations. Counsel submits that the applicants have not put forward any basis upon which the requirement of an environmental impact assessment would apply to the planning application in question as it is not a development requiring an environmental impact assessment. Furthermore the development in question was referred to in the environmental impact statement lodged with planning application 98/3858 and the applicants have adduced no evidence to support their contention that an environmental impact assessment was not carried out in relation to this development.

With regard to the reference in Mr. Rooney's affidavit to the failure of the statutory notices to "specify that the application was subject to the control of the Waste Management Act" counsel refers to the fact that this is not a ground advanced in the applicants' statement of grounds filed herein.

With regard to the application for declaratory relief that the planning application 98/3858 is not a valid application, it is submitted that such a declaration can serve no useful purpose in circumstances where the decision in question made on foot of the application is effectively immune from challenge and has not been impugned in these proceedings. It is submitted that this relief is sought in an effort to overcome the limitation periods in relation to challenging planning decisions.

With regard to the application for a declaration that the conditions attaching to the grant of permission are other than in accordance with the provisions of the Planning Acts, it is submitted that the applicants are not entitled to this relief for the reason that there has been no challenge to the conditions in question and no relief has been sought challenging same. It is submitted that the applicants are not entitled to seek redress for this failure by challenging the conditions attached to the grant

of the relevant permissions as against the County Council. It is submitted that the visual impact of the development, being a matter which might adversely affect the countryside, was a mater falling within the definition of "environmental pollution".

Counsel submits that the submission made on behalf of the applicant amounts to asking the Board to judicially review the decision of the County Council in regard to the adequacy of the notice given. It is submitted that the Board does not have this type of function. It is submitted that it is confined essentially to the matters raised on the appeal.

While counsel refers to the provisions of ss. 13 and 14 of the Act of 1992 in referring to the matters to which the Board may have regard in determining an appeal counsel submits that the Board dismissing the appeal, in the circumstances, was not "determining an appeal" within the meaning of the section.

It is submitted that it is immaterial to the effect of the Board's decision that the decision of the County Council may include conditions which are impermissible, as this is not a matter that falls to be exercised by the Board.

With regard to the retention application, counsel refers to the fact that the Act of 1996 does not make any provision for a 'retention licence'. It is submitted that the licence applied for is one that will cover the entire facility. It is submitted that the E.P.A. itself may impose conditions. It is submitted that the material on the site will become encompassed within the licence and be subject to conditions.

It is submitted that the planning history is irrelevant to the legality of the grant of permission.

Counsel refers to the fact that the applicants had an opportunity of challenging the decision of the planning authority. However, the applicants chose instead to appeal to the Board.

Counsel stresses by reference to the provisions of s 26 (9) of the Act of 1963 the fact that grants issue as a matter of course after a determination in favour of the grant of planning permission by the Board. Counsel submits that the decision of the Board in relation to the grant cannot now be impugned by reference to the alleged failure to comply with the permission regulations. It is furthermore submitted that in the circumstances the grant of declaratory relief regarding the validity of the initial applications for planning permission can serve no useful purpose. Counsel submits that because the decision of the planning authority was not challenged in the first place the grant of permission cannot now be challenged.

Counsel refers to Garden Village Construction Company Limited v. Wicklow County Council (Unreported, High Court, Morris P., 16^th February, 1998) in support of his contention that the County Council must be considered to have treated the planning application as valid and in those circumstances it had no discretion other than to deal with the application itself.

Counsel takes issue with the description of the Board 'determining the application' in reference to its actions where it considered it unnecessary to consider the detail of the matter and dismissed the appeal in question.

Counsel submits that no issue was raised on the appeal pertaining to the time limit imposed by the Board in its notice served under s. 10 of the Act of 1992 on the 2^nd December, 1999 and submits that had such an issue been expressly raised on this application the County Council could have addressed same.

In reply, Mr. Murray on behalf of the applicants raises six points.

Firstly, he raised the issue of the definition of the phrase 'risk of environmental pollution' and submits that it does not arise in three respects, the visual impact of the development, the fact that the Board already determined the matter of the life span of the landfill and fixed a limit of two years on same and accordingly the matter is res judicata and thirdly the history of the site itself. Secondly, counsel submits that the Board failed to address the patently illegal activity in the past; thirdly, the issue of the retention permission; fourthly, the issue of the timing of the submissions invited by the Board; fifthly the question of the environmental impact statement and finally the position of the County Council.

With regard to the issue arising out of the visual impact it is submitted that this court is faced with a stark issue of statutory interpretation, which it is submitted arises in a defined context. It is submitted that the issue does not concern the risk of environmental pollution. Counsel submits that the change of law effected by the transfer of functions to the E.P.A. cannot have been intended to have the result contended for by the Board. Counsel submits that the wording does not permit the over broad construction suggested on behalf of the Board. Counsel refers to the words "to a significant extent" appearing in the definition of environmental pollution in s. 5 of the Act of 1996. On this basis it is submitted that the consideration of the visual impact of the tanks comes within the definition of environmental pollution. Counsel stresses that there should not be a confusion between "relating to the risk of environmental pollution" and 'relating to environmental pollution'. Counsel asks rhetorically 'Does the consideration of the visual impact of the tanks necessarily involve the Board considering whether there is a risk to a significant extent of environmental pollution?' and submits that this must be answered in the negative. On this basis counsel submits that the Board was not precluded from considering the visual impact of the development as this was a purely ordinary planning matter.

Counsel submits that the Board must look at the individual grounds where it dismisses an appeal in limine.

With regard to the claim that part of the appeal was res judicata, counsel submits that that point was in fact never reached by the Board as it determined that all the matters raised on the appeal were matters relating to the risk of environmental pollution. Furthermore, counsel queries how the transfer of functions from the Board to the E.P.A. could constitute a change in circumstances. Counsel submits that in these circumstances the Board has in fact failed to show any change in circumstances. Counsel submits that the new role for the E.P.A. is irrelevant as the Board still decides whether to grant permission.

With regard to the previous conduct of the Corporation, it is submitted that this cannot be considered as a matter relating to the risk of environmental pollution. In this regard reference is made to ground (4) in the notice of appeal of the 22^nd June, 1999 pertaining to the lack of accountability complained of. Counsel submits that there is no preclusion from considering the previous history of the site. Counsel submits that on the evidence this was never a case where it was determined whether or to what extent the Board should take the previous history of the site into account. Counsel refers to the power of enforcement of a planning authority under s. 35 of the Act of 1963 and submits that it must be an open question in the circumstances where these powers are not applied whether this fact may be taken into account by the Board and counsel submits that the Board may indeed take the issue of enforcement and accountability into account. Counsel refers to the fact that this matter is a distinct ground of appeal to which the Board has not given reasons as to why it has not addressed same.

With regard to the submissions of counsel for the Board to the effect that the Board was not expected to go outside the precise matters raised on the appeal and to consider the validity of the applications for planning permission, counsel refers to the fact that the Board of its own motion raised the issue of the environmental impact assessment with the E.P.A. and also whether the leachate lagoon was covered by the licence application then before the Agency.

Counsel further complains that the Board must have been aware in making its decision that the conditions purported to be imposed by the planning authority in its decision would stand in the light of the Board's decision and that these conditions were clearly unlawful as the planning authority had no jurisdiction to address these matters.

Counsel refers to the powers of the Board under s. 13 of the Act of 1992 to take into account matters other than those raised by the parties to the appeal and in addition counsel refers to the power of the Board under s. 10 of the same Act to "dismiss or otherwise determine the appeal" where there is a failure to comply with a requirement in a notice under that section.

Counsel submits that the statutory requirement in s. 26 (5) (b) to "determine the application as if it had been made to the Board in the first instance" is such that it is incompatible with a situation where the Board ignores irregularities which come to its attention. It is submitted that when the Board raised the issue with the E.P.A. with regard to the need for a licence that it must have been aware that the notice in question published at the time of the application for planning permission was not in accordance with the statutory requirements and that on this basis it must have been aware that the application was invalid. Counsel queries the entitlement of a public body such as the Board to ignore matters which are fundamental to its jurisdiction to enable it to proceed to the next stage.

With regard to the notice served by the Board inviting further submissions from the applicant it is submitted that the notice in question failed to give the applicants the period of time as required by s. 10 of the Act of 1992; "being a period of not less than fourteen days beginning on the date of service of the notice" to respond to the notice in question. In this regard it is submitted that this failure amounts to a failure to accord the applicant natural and constitutional justice, which relates to the 11^th ground of relief relied upon in this application, together with the grounds at (8), (10) (13) and (14) herein. While this was not expressly referred to in the grounds of application herein it is submitted that the same has been raised by Mr. Rooney in his grounding affidavit in which he complains of the lack of time afforded to answer the points raised by the Board in its letter of 2^nd December, 1999.

With regard to the point raised by counsel for the County Council that as the applicants have not challenged the decision they cannot challenge the grant of planning permission, counsel submits that all that is left to challenge by reason of the decision of the Board is the grant of planning permission. Counsel submits that the applicants are entitled to seek the declaratory relief sought herein. Counsel refers to the judgment of Kelly J. in Goonery v. Meath County Council (Unreported, High Court, 15^th July, 1999) where the learned High Court judge indicated that an application for declaratory relief was relief impugning the decision of the respondent in that application and if granted would "mean in practical terms that the decision of the Meath County Council was invalid". On this basis counsel submitted that it could not be said that in seeking declaratory relief the applicants were seeking to circumvent the policy of the Planning Acts.

With regard to the environmental impact statement, it is submitted by counsel that there is no doubt that the leachate lagoon was part of the facility that required an environmental impact assessment. Counsel submits that the County Council cannot avoid the obligation to obtain an environmental impact statement by splitting the application.

Counsel submits that it is quite extraordinary that the Board should contend that the appeal was invalid by reason of the statutory scheme and in particular s. 54 of the Act of 1996 and at the same time to immunise the planning permission by the same provision. Counsel submits that this cannot be the true effect as the Board purported to dispose of the appeal by ruling that all the matters raised on the appeal were matters relating to the risk of environmental pollution.

Conclusions:-

The essential issue that arises is whether the grounds advanced by the applicants on their appeal to the Board required that they be considered in the normal way or whether they permitted the Board to dispose of the appeal under the provisions of s. 14 of the Act.

On a reading of the notice of appeal of the 1^st June, 1999 I am satisfied that the complaints raised regarding the size of the treatment tanks in the context of toxic levels pertaining therein and the references to the tanks being uncovered and giving rise to smells and a risk to the safety travellers in the vicinity, which matters are addressed at points (2) and (3) of the letter of appeal, are clearly matters which come within the terms of s. 54 of the Act of 1996 as the grounds raised in that regard relate to the risk of environmental pollution which is defined in s. 5 of the Act of 1996 to mean, "in relation to waste, the holding, transport, recovery or disposal of waste in a manner which would, to a significant extent, endanger human health or harm the environment, and in particular:-

( a ) create a risk to waters, the atmosphere, land, soil, plants or animals,

( b ) create a nuisance through noise, odours or litter, or

( c ) adversely affect the countryside or places of special interest;"

With regard to the remaining ground in that document, namely that relating to the location of the treatment tanks it is clear that the concern raised there was one which related to the earlier grant of permission and while it may appear to have related to visual obtrusion in the context of the location being near the main road and the tanks not being covered or obscured from view, insofar as it embraced the terms of the earlier decision of the Board it is important to have regard to the terms of same. It imposed a condition to the effect that "separate secured areas exclusively for the temporary storage of any hazardous materials shall be located in the vicinity of the site entrance within a period of four months of the date of this order. No hazardous material shall be stored on the site for more than fourteen days." The reason stated in the earlier permission (P 96/1487) for this condition reads: 'In the interest of amenity and public health and safety'.

I am satisfied that insofar as the earlier condition referred to by Mr. Rooney in his letter of the 1^st June, 1999 was one clearly relating to 'hazardous materials' and was imposed for reasons including public health and safety, the Board was entitled to take this into account in its assessment that the ground in question raised a matter relating to the risk of environmental pollution as defined in the Act of 1996. I believe that the Board was entitled to take into account not only the fact that the ground advanced was one relating to the risk to human health but also that it was one which could be considered to raise an issue of harm to the environment. While the assessment of the risk of harm to the environment would fall to be considered, including whether the development would adversely affect the countryside, I am satisfied that once an issue in that regard was raised the Board was precluded from dealing with the matter having regard to the provisions of s. 54 of the Act of 1996 and in that regard it was entitled to avail of s. 14 of the Act of 1992.

This section provides:-

"14.—(1) Subject to subsection (2), the Board shall in the following circumstances have an absolute discretion to dismiss an appeal—

( a ) where, having considered the grounds of appeal, the Board is of opinion that the appeal is vexatious, frivolous or without substance or foundation, or

( b ) where, having regard to—

(i) the nature of the appeal (including any question which in the Board's opinion is raised by the appeal), and

(ii) any previous permission or approval which in its opinion is relevant,

the Board is satisfied that in the particular circumstances the appeal should not be further considered by it.

(2) The exercise by the Board of the power conferred on it by subsection (1) shall be subject to the restriction imposed on the Board by section 26 (5) of the Principal Act.

In the light of this provision and in particular para. (b) of sub-s. (1) thereof, I am satisfied that the Board was entitled to conclude that it should dismiss the appeal in question as the matters at issue were matters to be addressed in the context of the application to the E.P.A. for a licence for the facility in question.

I am satisfied that the Board was entitled to address its mind to the grounds of appeal and consider whether they raised an issue of the risk of 'environmental pollution' and, inherent in that, to consider, having regard to the definition of same in s. 5 of the Act of 1996, whether the risk was capable of endangering human health or harming the environment "to a significant extent" in any manner contemplated by s. 5 of the Act of 1996.

With regard to the grounds advanced in the letter of the 22^nd June, 1999 it is clear that all of these grounds raise in one form or another issues relating to the risk of environmental pollution. While it is clear that to some extent the issues raised might be construed as raising an issue as to whether the principle of res judicata applied, I believe that if any such principle applied this was a matter to be determined by the E.P.A. in its consideration of the application for a licence under the Act of 1996 and I am satisfied that the Board could not have considered the matter without trespassing into an area excluded from it by reason of the provisions of s. 54 of the Act of 1996.

With regard to the specific grounds upon which the applicants were granted by order of this Court leave to institute these proceedings, I am satisfied, with regard to a number of these grounds that the conclusions previously stated apply with equal force to these grounds. However, the particular issues raised include (a) the alleged inconsistency of the respondent; (b) the alleged non compliance with the regulations of 1994 insofar as a waste licence was required; the alleged failure to ensure that the requirements of the Planning Acts insofar as these applications are concerned were complied with; (c) the effect of the decision of the Board insofar as it had the effect of confirming the decision of the planning authority which included conditions pertaining to the risk of environmental pollution; (d) the failure of the planning application 98/4047 to specify that the application was subject to the requirement to obtain a waste licence under the Act of 1996, and (e) the failure of the public notice of the application to indicate that an environmental impact statement was necessary.

In addition to these matters grounds have been advanced to the effect that the decision in question was irrational and that the Board failed to have regard to the requirements of natural and constitutional justice; that the decision of the County Council was ultra vires with regard to the conditions contained therein; and that the County Council took into account irrelevant material and its decision contained an error on its face.

With regard to planning application 98/3958 the complaint made is that part of the application did not require an application for a waste licence and that in respect of that part the application should have been considered by the Board, particularly in the light of previous determinations made by the Board.

I am satisfied that the plea of inconsistency raises the same issue of res judicata previously referred to and it is not necessary to repeat my conclusions in that regard.

With regard to the alleged failure to comply with the regulations of 1994, I am satisfied that the Board was not required to address every possible infirmity with regard to the planning application itself as the same had not been raised on appeal to the Board. I am satisfied that the alleged failure was not such as to be substantial or such as to deny the applicants any right, to which they were entitled, to advance any relevant ground of appeal to the Board. I am furthermore satisfied that the matter complained of in this application was such as to defeat the primary object of the publication as indicated in the judgment of Griffin J. in Crodaun Homes Ltd. v. Kildare County Council [1983] I.L.R.M. 1 at p.3, which is "to enable those members of the public who are interested in the environment, or who may be affected by the proposed development, to ascertain whether they may have reason to object to the proposed development." Accordingly, I am not satisfied that the failure alleged in this case is such as to invalidate the decision the subject matter of these proceedings.

Even if I were to come to a contrary view I am satisfied that the same would not be a basis upon which I should exercise my discretion to grant the applicants the relief which they seek in that regard, especially where the matter was not raised on the appeal to the Board.

I believe that while the regulations require a notice to specify when an application for planning permission will be subject to the obtaining of a licence from the E.P.A., the failure to designate this fact does not preclude an application for a licence and while it may have induced the applicants to address material to the Board which it could not consider, it did not in a material respect influence the result of the appeal as the Board obtained the necessary advice regarding the necessity for a licence. I am furthermore satisfied that any failure to indicate the limits of the appeal did not and could not have precluded the applicants from advancing all relevant matters to the Board by way of appeal.

While the decision of the planning authority in planning reference 98/4047 contained a condition which suggested that it did not confine itself to the relevant material, having regard to the provisions of s. 54 of the Act of 1996, I am satisfied that while the conditions attached to the decision to grant planning permission included matters which related to the risk of environmental pollution, this is not a basis upon which the decision should be quashed as it is clear that the planning authority decided to grant planning permission and the conditions in question will fall in the event of a licence issuing from the E.P.A. Furthermore, the particular condition did no more than indicate in regard to the sludge from the proposed development that it be disposed of in an environmentally acceptable manner and in accordance with the requirements of the E.P.A. This indicates that the planning authority was mindful of the fact that the matter would be the subject of a licence from the E.P.A. In light of this I am satisfied that the condition in question is irrelevant. I am not satisfied that, by reason of the inclusion of this matter, it can be said that the decision of the County Council is invalid or is bad on its face. At most, I am satisfied that the inclusion of such material in the form of a condition which the County Council did not have jurisdiction to impose, might have resulted in the same being quashed. However, such relief would be discretionary by its nature and no benefit could be served by quashing same where it will fall in any event by the grant of a waste licence.

I am similarly of the view that any condition imposed in the decision in the case of planning reference 98/3858 which related to the risk of environmental pollution is not of itself a basis upon which the decision should be invalidated.

I am satisfied that matters would be different if it could be shown that the planning authority refused permission on the basis of material which it could not take into account.

I am satisfied in the circumstances that the decision of the Board has not been established by the applicants to be irrational or that in taking the decision in question the Board acted in disregard of the rights of natural justice, especially as it invited submissions from the applicants on the matter.

With regard to the application of the European Community (Environmental Impact Assessment) Regulations, 1989 as amended, I am satisfied that there has been compliance with same in the context of the landfill operation. While an issue has been raised with regard to the necessity for an environmental impact statement to cover the wider development, I am satisfied in the light of the uncontroverted evidence of Mr. Liam Kavanagh that the development the subject of planning permission 98/4047 was taken into account in an environmental impact statement lodged with planning application 98/3858 and that there has not been any want of compliance with the regulations of 1989 assuming the same to apply to the wider development including the leachate lagoon. However, I wish to add that I am not at all satisfied that an environmental impact statement was required in respect of the leachate lagoon.

I am satisfied, having regard to the application for retention of waste on the site that this amounted to an application to permit the permanent storage of waste on the site, for which a waste licence is required under the Act of 1996. Accordingly, I am not satisfied it is a matter that was required to be addressed by the Board itself.

With regard to the suggestion that the Board should have addressed the patent illegality alleged to have taken place in the past, I am satisfied this is not a matter that was required to be addressed by the Board insofar as it was a matter of enforcement of a grant of planning permission and not whether a planning permission should be or should have been granted and secondly, the issue of enforcement itself was raised in the context of a submission relating to the risk of environmental pollution.

With regard to the s. 10 notice served by the Board, I am satisfied that the legality of this does not arise on this application as the same has not been raised as a ground of application in the order giving the applicants leave.

Finally, in regard to the decision of the County Council itself, I am satisfied that the grant of permission is a matter which is not the subject matter of any discretion in light of the decision of the Board and I am satisfied that the applicants are not entitled to any relief calling the same into question. The applicants chose to take an appeal to the Board rather than challenge the decisions of the County Council and I am satisfied in the circumstances of this case that they are not entitled to the declaratory relief which they seek in relation to those decisions.

In conclusion I refuse the applicants the relief which they seek.