Wednesday 26 July 2017

Indaver must pay costs of withdrawn incinerator legal challenge

Tim Healy

A COMPANY must pay the legal costs of a residents group and of An Bord Pleanala over its challenge to a refusal of permission for a waste incinerator, the High Court has ruled.

The conduct of Indaver NV, trading as Indaver Ireland, in its action over being refused permission for the incinerator in Co Cork amounted to an abuse of process, High Court president Mr Justice Nicholas Kearns said.

Indaver withdrew its judicial review challenge on the eve of hearing last October.

Mr Justice Kearns said its conduct of the case allowed the legal costs of the Board and residents escalate almost as if the case was going to full hearing.

And while Indaver would ordinarily be protected under Planning & Development Act 2000 from a costs order against it, the court would apply a special provision of that Act permitting an award of costs against a party due to the manner in which it conducted proceedings, he ruled.

That provision encompasses unnecessary prolonging of proceedings when the party no longer has a bona fide belief in its case, he said.

That provision was inserted following a European Court of Justice finding in 2009 that Ireland had failed to fulfil certain "access to justice" measures aimed at ensuring it is not prohibitively expensive for the public to seek judicial review regarding major development projects with potential to seriously affect the environment.

CHASE (Cork Harbour Alliance for a Safe Environment) participated in the planning process concerning Indaver's application and the judicial review action "at very great personal and financial cost to its members and the communities supporting it", Mr Justice Kearns said.

Bord Pleanala had refused permission in June 2011 for the hazardous and non-hazardous waste-to-energy facility proposed by Indaver for Ringaskiddy.

Indaver initiated judicial review against the Board in July 2011, CHASE was joined as a notice party in October 2011 and the case was listed for hearing on October 23rd 2012.

In its action, Indaver claimed material changes to the waste management plan for Co Cork occurred before Bord Pleanala refused permission but those changes were not taken into account by the Board.

On October 12, 2012, it indicated it was seeking a waste management plan evaluation referred to in Council minutes of September 2012.

The Board claimed the judicial review was an attempt by Indaver to persuade the Board the policy context favoured a grant of permission when Indaver could have achieved the same outcome by making a fresh application for permission.

Indaver had confirmed it intended to lodge a third application for permission for the incinerator development and in August 2012 asked for pre-application consultations with the Board.

The Board replied Indaver should bring a fresh planning application if it considered the context had changed but Indaver did not do so until the eve of hearing.

The Board alleged Indaver, from the time the Board filed its opposition to the case in February 2012, had no intention of continuing with its case. Mary O'Leary of CHASE claimed it did not have the resources to actively participate in the process surrounding a third planning application by Indaver.

Yesterday, Mr Justice Kearns found Indaver delayed in applying for an adjournment of the case on grounds "supposedly new evidence" had come to light - a waste management plan evaluation document referred to in

minutes of Cork Co Council in September 2012. That evaluation document later became the reason for withdrawing, not continuing, the action, he said.

He found Indaver prolonged the case without intending to continue it and withdrew it "at the last moment". Indaver had no bona fide belief in the case after September 10, 2012, and its conduct of the case after that "can only be seen as an abuse of the court process", he found.

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