The High Court has cleared the way for horse trainer Mr Aidan O'Brien and the Magnier family, who own Coolmore Stud in Co Tipperary, to challenge a decision of South Tipperary County Council to grant planning permission for an incinerator near their lands.
Mr O'Brien, who owns the 600-acre Ballydoyle stud, claims the operation of the proposed €25 million development would be a health risk to his family and local residents.
After Mr Justice Ó Caoimh granted leave yesterday to take judicial review proceedings challenging the granting of permission, Mr O'Brien said in a statement said they were very pleased with the court's decision.
He added that the local community believed a meat-and-bonemeal incinerator would damage their health and livelihoods.
The council has granted planning permission for the incinerator to National By-Products, part of Ronan Industries. The development is for the installation of a burner unit for waste disposal by way of thermal treatment of selected animal by-products and/or waste.
The company had opposed the application for leave to take judicial review proceedings and argued that objections to the construction of the incinerator could be dealt with at An Bord Pleanála hearing of an appeal against the council's decision.
After yesterday's decision, National By-Products said in a statement it had always expected the matter to become a protracted process given the resources of the opponents to the project. They added that they would be contesting the judicial review proceedings.
In his decision granting leave, Mr Justice Ó Caoimh said the central issue was whether the application by way of judicial review was, on all the facts of the case, a more appropriate method of procedure than pursuing the appeal to An Bord Pleanála. A complex and substantial issue had been raised on whether an EC Environmental Impact Assessment Directive had been properly transposed into Irish law and whether the procedures provided for under our planning code complied with the requirements of that 1997 EC directive.
The issue was one which went to the heart of whether the local planning authority was deprived of jurisdiction to carry out an environmental impact assessment in accordance with the EC directive.
It was claimed on behalf of Mr O'Brien that the primary aim of the directive was to provide the competent authorities "with relevevant information to enable them to take a decision on a specific project in full knowledge of the project's likely significant impact on the environment".
Mr O'Brien's lawyers had argued that the planning code severely restricted a planning authority to considering "proper planning and developmnent".They also claimed that where "an activity" required an integrated pollution control licence, the planning authority was restricted to deciding the risk of environmental pollution when considering the adequacy of an Environmental Impact Statement .
The objectors alleged that as a result of these restrictions in Irish legislation the competent authorities for the purpose of the EC directive - including the planning authority, An Bord Pleanála and the Environmental Protection Area - were precluded from considering the entirety of land-use planning considerations which might stem from the activity.
In his opinion, the issues raised by Mr O'Brien and the other objectors in relation to the implementation of the EC directive into Irish law would be more appropriately dealt with in judicial review proceedings, the judge said. He was satisfied that a remedy by way of the appeal to An Bord Pleanála did not represent an alterative to the extent that it could be stated that judicial review was not a more appropriate method of procedure.
The judge said he would grant a stay on the hearing of An Bord Pleanála's appeal pending the High Court proceedings. It was clear that damage might be caused to National By-Products by a postponement of the development. However, the applicants were persons of some financial substance and would, if required, be able to honour an undertaking as to damages, he added.
The South Tipperary Anti-Incinerator Campaign welcomed the High Court ruling. "This is a very significant day in our campaign," said vice-chairman, Mr Nicholas Ryan.
"There has been great concern about the manner in which the planning permission for this incinerator was granted on May 13th - just nine weeks later. The application was never even discussed by elected officials and there was no adequate public consultation. People in south Tipperary do not want this unnecessary incinerator which threatens their welfare and livelihoods. Our campaign will continue to oppose the incinerator at every turn and we are very appreciative of the support we have received and which we will continue to need in coming months," Mr Ryan said. The campaign is backed by 23,000 signatories.