Indaver Ireland have secured permission of the High Court to challenge An Bord Pleanála's refusal to grant the company planning permission to build a waste incinerator at Ringaskiddy, Co Cork.
The company has brought judicial review proceedings on ground including the board erred in law in its decision to refuse permission to build the incinerator.
In its decision last June refusing permission the board said the application for a municipal waste incinerator was not compatible with the waste management strategy plan for Co Cork.
The board also cited the risk of coastal erosion and flooding and the size of the development of the 30 acre site at Ringaskiddy.
Belgian registered Indaver NV, trading as Indaver Ireland Haddington Terrace Dun Laoghaoire, Dublin, have brought proceedings aimed at quashing the board's decision of June 9, 2011, refusing Indaver's application to develop a waste to energy facility for hazardous and non-hazardous waste and a transfer station at the site located on lands opposite the National Maritime College, Ringaskiddy, Co Cork.
Indaver are also seeking an order from the High Court remitting the application to the board for its further consideration.
In its proceedings Indaver are further seeking a declaration the board has erred in law in refusing the application and it has acted in breach of fair procedures in its consideration of the application.
Cork County Council are a notice party to the proceedings.
Moving the application, Garrett Simons SC for Indaver said the challenge is taken on a number of grounds.
These included that the board made a conclusive determination on a material element of the application before an Environmental Impact Assessment was completed. This counsel said was contrary to European law.
Counsel also submitted the board incorrectly interpreted section 37F 1B of the Planning and Developments Act 2006 by reaching a conclusive determination on an aspect of the application.
In this case the Board refused to grant permission to allow municipal waste be incinerated at the proposed facility.
The section, counsel said, allows the Board to make a provisional view only and that view must be subject to review and further information submitted.
Counsel also said the Board failed in its obligations to keep itself informed of, and have regard to, Government policy and the policy of the relevant local authority - in particular the relevant development plan which includes the relevant waste management plan.
The Board, counsel submitted, failed to consider the need for thermal treatment of residual municipal waste at the time of its decision
Today at the High Court leave to bring the challenge was granted, on an ex parte one side only basis, by Mr Justice Michael Peart.
The Judge made the matter returnable to October when the new legal term commences.