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Judge Quashes Planning Permission For Incinerator

Writes Ciaran Dineen

21 years into a controversial planning application and it finally feels like a turning of the tide for the Cork Harbour Alliance for a Safe Environment (CHASE), following the decision of Mr Justice David Barniville to quash planning permission for a proposed incinerator in Ringaskiddy.

The process will now have to wind the clock back four years to 2017, prior to a decision made by Deputy Chairperson of An Bord Pleanála, Conall Boland, who refused to give an opportunity to CHASE and other interested parties to respond to new information submitted by the planning applicant, Indaver. Justice Barniville ruled that objective bias marred the outcome of the Bord’s decision in 2017, given that Mr Boland had previously worked in the private sector in a consulting capacity and had been tasked, by Indaver, to make observations to waste management proposals of both Cork City and County Council.

In his judgement, Justice Barniville stated that “the consequence of the remittal to that point in time is that the addendum, or supplemental report of the inspector dated March 7, 2018, should not be considered by the Board in the course of its consideration of the remitted application as the applicant and others did not have the opportunity of commenting upon the further submissions provided by Indaver in early October 2017.”

The moment feels like the biggest win for the objectors in this case, more than two decades after CHASE formed as a group in opposition to the incinerator proposals. The application has been riddled with controversy from start to finish, and the contemporary plan is in fact the third attempt from Indaver to seek permission.

Application Number 3:

In January 2016 Indaver lodged their third application with An Bord Pleanála, who once again agreed to allow for an oral hearing, which took place in the Carrigaline Court Hotel, allowing many familiar voices in the Harbour community to voice their concerns and observations.

The senior planner, Derek Daly, recommended refusal of proposals, citing that the environmental impact statement was “deficient in content and deficiencies are not addressed in the initial submission”. However, he did point out that problems which had previously arisen in relation to flooding and coastal erosion, were now addressed and deemed acceptable.

The original date for a decision from the Board on this third application was set at July 2016, but an incredible and frankly embarrassing series of events followed, which saw deferral after deferral. Eventually a final decision was made in May of 2018, with the Board granting permission.

Although they required Indaver to adhere to a number of conditions, the Board ultimately did not share the senior planner’s opinions, particularly in relation to arguments that he made in relation to overdevelopment and the potential negative impact that the development could have on local amenities.

Earlier in the process of this third application, An Bord Pleanála had requested further information from Indaver, however once received, Mr Boland did not seek further comment or observation from CHASE and others, preventing any other debate on the content provided by the applicant.

The request for additional information had been ordered following concerns over dioxin figures, which were raised at the oral hearing in Carrigaline. Justice Barniville’s decision now means that the process will revert back to 2017, prior to the Board’s final decision to grant planning permission, meaning that the infamous application is likely to continue.

The ruling was however a positive one for local activists and CHASE Chairperson Mary O’Leary was upbeat in her post-decision analysis saying, “we won our case securing an unprecedented objective bias judgement against Bord Pleanala and now we are putting the Bord on notice to make a fair and lawful decision or they will face us again in the future. Since this 2016 application the landscape of policy, of EU Legislation and of Cork Harbour itself have changed entirely, which must all be considered now in assessing this application. The reality is we will never allow this incinerator to be built in Cork Harbour.”

Local Councillor, Marcia D’Alton (Ind), has been one of the key figures in the background against the proposal, having initially entered local politics after being approached to get involved with the opposition campaign. Over 20 years later she remains at the heart of local government politics and has spent many a day over the last few years making the journey to Dublin during Court proceedings.

Speaking freely and honestly following the latest ruling, Cllr D’Alton said “Is this good or bad? I'm not sure. The next move will be An Bord Pleanála's. They have an almost entirely new team of Board members, all of whom will have to become familiar with and expert on extremely complex topics like dioxin emission, helicopter movement and much, much more. That will take time. The whole scene of waste handling and legislation has moved on. Much of the information supplied by Indaver with the planning application may now be out of date."

"The amenity use of that part of the harbour in Ringaskiddy has taken on a whole beautiful new life courtesy of Covid's forcing a rediscovery of the gifts on our doorstep. So both CHASE and Indaver will be waiting for communication from An Bord Pleanála. We have no idea when that will come. And in the meantime, Justice Barniville has some final housekeeping decisions (such as costs) to make on the appeal.”

Given the extraordinary length of time that has passed between each decision and ruling over the course of each separate application, the latest of which has experienced frankly embarrassing delays, it could take some time for the fog to clear and to gather what will unfold next.

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