Offaly residents win High Court challenge against permit for waste facility

A number of local residents have won a High Court order quashing Offaly County Council's decision to grant a permit for a waste facility near Daingean following a review.

The council must now reconsider the permit application in line with Ms Justice Miriam O'Regan's findings.

Among the residents' concerns was that the waste facility at Barnam, Daingean, could have a significant impact on the adjacent Raheenmore bog special area of conservation (SAC).

In a judgment today, Ms Justice O'Regan ruled a full two-stage Appropriate Assessment (AA) required to be undertaken before the council's review of the permit sought by Guessford Ltd, trading as Oxigen, but that was not done.

The stage-two element of the AA process could only be ruled out if the council was convinced the plan will not adversely affect the integrity of a European site, she noted.

It was "inappropriate" that mitigation measures would be availed of in a council AA screening report of December 2016 to avoid a full two-stage AA, she said.

That report had not ruled out the possibility of a significant effect on the Raheenmore bog SAC, she said.

Because a full AA was not done, the council lacked jurisdiction to review the permit, she ruled. Its reasons for granting the review of the permit were also "not reasonably clear", she also held.

Guessford had applied to the council, under the Waste Management Regulations 2017, for a review of a five-year permit granted to it in 2011. After the council granted a review and permit, its decision was challenged in judicial review proceedings by 10 local residents.

In her judgment, Ms Justice O'Regan noted permission for a waste facility on the Barnam site was first given in June 2010.

The site and waste licence was transferred to Guessford in March 2011 and Guessford later applied for an enlargement of the activities on the site and for planning permission. That was refused in September 2011.

The judge noted a waste facility permit issued in February 2007 and was renewed in 2011 for five years with an expiry date of December 2015. In September 2015, Guessford sought a review of the permit, to which the residents objected.

The council carried out a site inspection and also provided reports concerning a screening for an EIA (Environmental Impact Assessment) and for an AA.

In a letter to Guessford dated December 20, 2016, the council said it had decided to grant a review of the permit and attached a permit with conditions.

The judge noted the permit was limited to an annual disposal of 24,500 tones at the waste facility, under the 25,000 tonne threshold which would require a mandatory EIA.

The council had said the screening exercise was carried out to determine whether or not a full EIA was required and had also acknowledged, under the Habitats Directive, an AA is required, she said.

There was some controversy in the case concerning what documents comprised the screening for an AA but a 12-page report of December 8, 2016, was either "pivotal" in or about the screening process or, along with a site inspection, comprised the screening process.

Applying the relevant legal test to the screening portion of the AA process, she found it cannot be said the screening report confirmed there were "no doubts" about the absence of significant effects on a European site.

One part of the report was "at least equivocal" as to significant effects. A full AA assessment had to be undertaken before any decision was made, she ruled.

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