Indaver told to pay residents’ legal costs

A waste management firm has been told to cover the costs incurred by a group opposed to its incineration plans after the High Court ruled its behaviour during a legal action amounted to abuse of process.

Indaver Ireland has been ordered to pay legal costs for environmental lobby group Chase (Cork Harbour Alliance for a Safe Environment) and An Bord Pleánala because of the manner in which it conducted itself during its application for a judicial review.

In July 2011, Indaver Ireland sought a judicial review of An Bord Pleanála’s decision to refuse its €150m waste-to-energy project on the grounds that the board may not have had a complete picture of the true state of waste plans in Cork when it made its decision.

These included the fact that Cork City Council had cancelled plans for an alternative waste facility in May 2010. The board had cited the council’s plans to build its own waste management facility as among the primary reasons for refusing Indaver’s application.

In October, Indaver dropped its High Court challenge. It subsequently emerged that the firm was planning to lodge a third application to build incinerators on the same Ringaskiddy site.

Yesterday, the president of the High Court, Mr Justice Nicholas Kearns, said that while Indaver NV, trading as Indaver Ireland, withdrew its legal challenge on the eve of the hearing in October, its conduct saw legal costs to the planning board and residents’ escalate almost as if the case was going to full hearing.

He found Indaver prolonged the case without intending to continue it and withdrew it “at the last moment”. Indaver had no bona fide belief in the case after Sept 10, 2012, and its conduct after that “can only be seen as an abuse of the court process”, said Mr Justice Kearns. He found Indaver delayed in applying for to adjourn the case on grounds “supposedly new evidence” had come to light — a waste management plan evaluation document referred to in minutes of Cork County Council in Sep 2012. That evaluation document later became the reason for withdrawing, not continuing, the action, he said.

Chase participated in the planning process concerning Indaver’s application and the judicial review action “at very great personal and financial cost to its members and the communities supporting it”, Mr Justice Kearns said.

Chase chairwoman Mary O’Leary said the group was delighted with the decision, but that it brought into “sharp focus” the fact that they were waging a war “against a deep-pocketed corporate sector”.

A spokesperson for Indaver Ireland said it welcomed the fact that the legal proceedings had helped clarify the council’s evaluation of its waste management plan. “The conclusions of the evaluation are now clear and if the court case helped us get there then that’s a fair outcome,” said John Ahern, managing director Indaver Ireland.

Garrett Simons, counsel for Indaver, asked for a certificate permitting appeal of the costs order.

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