A local environmental group wants the High Court to make orders that would require the marathon planning process for a proposed €160 million incinerator at Ringaskiddy in Cork harbour to start afresh.

Following the court’s judgment last March upholding its challenge to An Bord Pleanála’s 2018 permission for the incinerator, Cork Harbour Alliance for a Safe Environment (Chase) says the permission should be simply quashed, with the effect the entire process would have to start afresh.

That is necessary because there is “nothing to show” the board has any insight into how the court’s findings affect public appreciation of its decision making, David Holland SC, for Chase, argued.

Indaver Ireland – which has been seeking since 2001 to build the incinerator – and the board, both oppose Chase's application. They want Mr Justice David Barniville to instead make orders that would see the board reconsider the planning application at a particular stage and in line with the court's March judgment.

Mr Justice Barniville heard day long submissions on Tuesday concerning what orders should be made. He will hear further arguments on June 18th.

Objective bias

Last March, he found the board's majority five/two permission was tainted by objective bias because Conall Boland, then deputy chairperson of the board, had previously worked for a firm of consulting engineers engaged by Indaver to make submissions for reviews of waste management plans advanced by Cork County Council and Cork City Council.

The judge was satisfied the work done by Mr Boland in 2004 had a “clear, rational and cogent” connection with Indaver’s 2016 application – its third – for permission for the incinerator and also noted Mr Boland was the presenting member of the board in respect of its consideration of the planning application. Those factors gave rise to a reasonable apprehension of objective bias, he held.

The second issue on which he found for Chase concerned the board’s jurisdiction to consider an application for permission for a Strategic Infrastructure Development (SID) by an applicant who is not the same person as had engaged in pre-planning consultation with the board.

The judge ruled the applicant for SID permission must be the same person referred to in the relevant provisions as the “prospective applicant” – the person who engaged in the required pre-application consultation procedure with the board. He found Indaver’s Belgian arm was the “prospective applicant” but the 2016 planning application was made by Indaver’s Irish arm.

‘Hugely overblown’ claim

On Tuesday, Rory Mulcahy SC, for Indaver, said permission for the incinerator was granted in 2018 after a “very lengthy” process including a 17 day oral hearing before the board.

There is no basis for a “hugely overblown” claim by Chase, that objective bias has pervaded the entire process such that it must start all over again, he submitted.

In any event, such concerns would be addressed because a differently constituted board will reconsider the application and a further round of public consultation is inevitable, he said.

The board’s reconsideration should start from October 2017, the point when Mr Boland was involved in a board decision, later revisited, not to circulate observers with Indaver’s response to the observers views on certain additional information provided by Indaver, he said.

Counsel for the board, Fintan Valentine BL, said Mr Boland is no longer a member of the board and an entirely new board will reconsider the matter if remitted.

He accepted that a report of a second board inspector in March 2018 did not have the benefit of comments from observers on Indaver’s response concerning the additional information provided. While the board had proposed its reconsideration should begin from a date in 2018, the actual date is a matter for the court, he added.

Mr Holland, for Chase, said neither the board nor Indaver had mentioned the “overarching concern”, the question of public confidence in the planning process, which the court had identified as motivating the law on objective bias.

Chase had not, and is not, alleging actual bias against Mr Boland and the board, he stressed.

It contended the board is “entirely subjective” in relation to how the public perceives its decision making processes. The board does not seem to understand the seriousness of the court’s finding that it should recognise objective bias is “corrosive” of public faith in its decision making processes, he argued.