Ringaskiddy Incinerator : Oral Hearing
17 May 2016. There was a dramatic last day at the Bord Pleanála hearing for the latest Indaver application for permission to build an incinerator in Ringaskiddy. Here is our closing statement made to the Senior Inspector on behalf of our clients CHASE (Cork Harbour for a Safe Environment).
Planning law enforcement: illegal Wind Turbines
16 March 2016. Two large wind turbines were built much bigger than permitted and, together with a third turbine, were built in the wrong place. In a major judgement issued today, the Court of Appeal says all three turbines should cease operating and should come down. The Court has however placed on a stay on these orders pending the decision of An Bord Pleanála in a related application. This Court enforcement action was brought by a private individual living about 1km from the turbines in West Cork. The judgement of the Court of Appeal affirms the importance of compliance with planning law and the Court's role in enforcement. See here for the judgement in Bailey v Kilvinane Windfarm Ltd.
Bord Pleanála windfarm decision unlawful
25 February 2016. The High Court has quashed a Bord Pleanála planning permission for an 11 turbine wind farm near Inchigeelagh in West Cork. The judgement of Mr Justice Bernard Barton in the case of Balz & Heubach v An Bord Pleanála is here.
The Court held that the Board had not demonstrated compliance with its legal obligations in relation to Environmental Impact Assessment under the EIA Directive and in relation to Appropriate Assessment under the Habitats Directive.
As a result the Court quashed the planning permission issued by the Board in 2013. We represented the applicants in this Judicial Review case who live and work with their family 650m from the nearest of the 11 large turbines that had permitted by the Board. The Board’s Planning Inspector had recommended refusal of four of the turbines.
The judgement applies the legal principle that quasi-judicial decision makers such as the Board must state reasons for their decisions and that those statements must have sufficient detail to allow the public – and the Court in the event of a judicial review- to see whether the Board has satisfied the legal tests laid down in Irish and EU law.
This judgement, like the 2014 judgement of the High Court in the Ó Grianna case linked below, will have serious implications for the practices of planning authorities at both local and national level when dealing with major projects that fall within the EIA or Habitats Directives.
High Court condemns ESB for flooding Cork
The High Court has found the ESB responsible for the disastrous 2009 Cork Flood. The Court found that the ESB failed to act properly in managing its dams, and failed to warn people of danger.
The Court decision runs to 555 pages. It is a detailed examination of the events leading up to the flood, and also looks at the impacts on some of the people affected, as well as on UCC. The ESB had denied liability. The Court held that it was liable.
The Court also found that UCC had not taken enough care to protect their own buildings and ruled that they could only recover 60 per cent of their losses from the ESB.
The full judgment of Mr Justice Max Barrett is here. There is a useful Index at the start which allows readers to find the parts that most interest them.
Wind Turbines: Planning Permission Quashed
12 December 2014. The High Court today quashed a Bord Pleanála planning permission for 6 large industrial wind turbines in County Cork. Mr Justice Michael Peart agreed with local residents that the Board had acted unlawfully in giving approval for the 100m high turbines at Réidh na nDoirí, Ballingeary. The full judgement of Mr Justice Michael Peart in the case of Ó Grianna & Others v An Bord Pleanála is here.
Noonan Linehan Carroll Coffey represented the successful applicants in this landmark Judicial Review case. Joe Noonan welcomed the verdict:
"There has been a rush to permit wind power generation plants in quiet scenic rural areas across the country. Rushed planning is bad planning and that can cause serious harm to people.
New planning guidelines for industrial wind turbines are long overdue. Meanwhile communities and private individuals have the worry and expense of taking Court action to protect their homes and their way of life. Planning policy is unbalanced. Policy makers need to think again."
The High Court found that the Board had failed to carry out a legally required assessment of the full range of impacts the entire project would have on the locality. The Court ruled that the windfarm works and the works to be carried out along a six kilometre route linking the turbine site to the national power grid via the nearest electricity substation had to be seen as one project. By law, the impacts of the full project had to be assessed. In this case the Board had not assessed the environmental impacts of the grid connection works at all.
This is the first High Court decision on what is called the project splitting point in relation to industrial wind turbines. The judgement confirms the meaning of the word ‘project’ so far as large scale windfarms of this kind are concerned.
Access to Justice: Indaver Ireland criticised
High Court President Mr Justice Nicholas Kearns has ordered Indaver Ireland to bear part of the legal costs incurred by An Bord Pleanála and CHASE (Cork Harbour Alliance for A Safe Environment) in opposing Indaver’s judicial review application. In his judgement delivered 21 January 2013, Mr Justice Kearns described aspects of Indaver’s conduct of the case as ’an abuse of the court process’.
In June 2011, An Bord Pleanala refused Indaver’s planning application for a waste incinerator in Ringaskiddy, Co Cork. In July 2011, Indaver started a judicial review action in the High Court looking to quash this refusal by the Board. The judicial review was fixed for a five day hearing in the High Court starting on 23 October 2012. Indaver however withdrew just days before the hearing was due to start. The question of liability for costs of the case was argued before the President of the High Court in December 2012 when judgement was reserved. The Court considered the new law adopted in Ireland in 2010 under the Aarhus Convention, which is designed to protect access to justice in environmental law cases. The reserved judgment was delivered on 21 January 2013.
Mr Justice Kearns said that from 10th September 2012 onwards Indaver had conducted the case in a manner that ‘can only be seen as an abuse of the court process’. He said that Indaver ‘prolonged the case without intending to continue it and withdrew the proceedings at the last minute.’ He therefore awarded the Board and CHASE their costs as and from that date. (See Judgment paragraphs 26 and 27). The basis for his comments is set out at length in the Judgment.
Noonan Linehan Carroll Coffey represented CHASE in the action.
Landmark Ruling in Pringle Case
The Court of Justice has handed down a landmark ruling in the Pringle Case C-370/12 on the ESM treaty and EU treaty amendment.
The 27 judges of the CJEU have ruled that the ESM treaty obligations are not inconsistent with the provisions of the EU treaties. The Court also found that it was not essential to amend the EU treaties in order to permit member States to operate the ESM.
The judgment of the Court can be found here.
Commentary on the outcome appears in the current issue of the German Law Journal.
The EU law issues in the case had been referred to the CJEU by the Supreme Court for ruling. The case now returns to the Supreme Court for final determination.
Noonan Linehan Carroll Coffey represented Mr Pringle.
Citizens’ Guide to ESM treaty and Fiscal treaty
A Tale of Two Treaties: A Citizen’s Guide to the Stability Treaties of 2012
In this guide we give people an introduction to the content of each treaty and explain how the two treaties are interlinked. We also describe the proposed amendment to Article 136, agreed by EU Heads of Government to facilitate the establishment of the ESM.
Financial/Investment Advice Leading to Loss
We may be able to help as one of our recent cases in this area shows. In July 2010 the High Court confirmed a ruling by the Financial Ombudsman that Financial Advisors are under a duty to advise their clients properly, and may be held liable for losses suffered by clients if they breach that duty.
AIB v Financial Services Ombudsman and others
Judgment of High Court President Nicholas Kearns 22 July 2010
The Ombudsman ordered AIB to refund over €200,000 to our clients which, on the Bank’s advice, they had invested in bank shares in August 2008. AIB appealed the Ombudsman’s findings to the High Court and lost the appeal. AIB went on to seek permission to appeal the High Court decision to the Supreme Court and were refused permission.
Cork Flood Damage
We are advising a range of householders and business owners affected by the November 2009 flood in the Lee valley. Was the damage avoidable? Why did the flood occur as it did? How can action be taken to minimise the risk of a similarly devastating flood in future? These are among the questions we are seeking answers to on behalf of our clients.
Case Reports & Publications
Below you will find links to Court Reports of some interesting cases in which we represented the Plaintiff/Applicant.
Donal de Róiste v Judge Advocate General and Others.
Judgement of High Court of High Court in 2005 on a judicial review application.
Wm Peter O’Byrne v Dunnes Stores.
Labour Court Determination in 2003
Edward Horgan v An Taoiseach and Others.
Judgement of the High Court in 2003 concerning Government consent to US military overflights and use of Shannon.
Samuel Shinkwin v Quin-Con Ltd & Anor.
Judgement of Supreme Court in 2000 on company law issues arising in a personal injury action.
Raymond Crotty v An Taoiseach and Others.
Judgement of Supreme Court in 1987.
(in this case, we did not represent Raymond Crotty but Joe Noonan gave evidence on his behalf as the expert witness on the foreign policy implications of the Single European Act).