Irish Water application for north Dublin plant can be reconsidered, High Court rules

Irish Water’s application for permission for a €500 million wastewater treatment plant at Clonshaugh, north Dublin, can be reconsidered by An Bord Pleanála from the point when the planning process went wrong, the High Court has ruled.

An order simply quashing the board’s November 2019 permission without remittal to the board would set Irish Water back by 16 to 17 months when it did not bear or share responsibility for the board’s mistake in the planning process, Mr Justice Senan Allen said.

Irish Water needed to know whether or nor its solution to the “urgent and growing problem” of drainage capacity for the greater Dublin area will be approved or not, the judge said.

He concluded the “single flaw” in the planning process identified by him last November, when upholding a challenge by Sabrina Joyce-Kemper, from Portmarnock, could be addressed and remedied by a specified remittal order.

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The appropriate order was to quash the board’s decision and remit the matter for reconsideration from the point the inspector’s report was submitted to the board, he directed.

He will decide costs issues later.

In his November judgment on Ms Joyce-Kemper’s challenge, he found the board failed to correctly identify and comply with its obligations under Waste Water Discharge Regulations 2007 to seek observations of the Environmental Protection Agency (EPA) on the likely impact of the proposed development on waste water discharges.

On that ground only, the planning approval was legally flawed and must be quashed, he ruled.

He later heard arguments concerning the orders to be made arising from his judgment.

In his ruling on Tuesday, the judge said Ms Joyce-Kemper had made out her main case on one ground only, that concerning the board’s obligations to seek observations of the EPA.

The core issue concerning what orders should be made as a result was whether the shortcoming in the process that he had identified could be addressed by remittal.

The essence of the applicant’s opposition to remittal was that the State’s obligations under the Environmental Impact Assessment Directive had not, at the time of the board’s decision, been correctly transposed into national law, he said.

That was an issue that she had lost in the main hearing and he would not revisit his decision in that regard, the judge said.

The legal obligation on the board, if it considered the project was likely to have a significant impact on waste water discharges, was to ask the EPA to make observations on the board’s assessment of such likely impact.

That obligation would only arise, and could only have been fulfilled, after the board had made its assessment. He was satisfied the point where the process went wrong was when the board could and should have made its assessment – when the inspector’s report was finalised.

There was “nothing wrong” with the inspector’s report and the report was necessary to enable the board to make the required assessment, Mr Justice Allen said.

He was satisfied the board will apply itself to the reconsideration task in good faith and in accordance with law. The board’s mistake was a “misstep in the minefield” of the Planning and Development Act 2000 and the 2007 regulations and there was “no justification” for the assertion on behalf of Ms Joyce-Kemper that the reconsideration, or the board’s consultation with the EPA, might be a mere “box-ticking exercise”.

Although this was not a case where the court should direct the matter be reconsidered by a different composition of board members, the board may wish to consider whether any further dissatisfaction might be avoided by appointing a differently constituted division to reconsider the matter, the judge added.