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Judicial Review Updates - May 2008

Ringaskiddy Residents Association and 11 local residents have been granted a Judicial Review of the planning consent by An Bord Pleanala for a toxic waste incinerator at Ringaskiddy, Co. Cork.

Ringaskiddy Residents association have also lodged an appliation for a Judicial Review of the EPA's decision to grant a licence for two incinerators at Ringaskiddy.
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In November 2007, an adjournment was sought by the applicants pending the outcome of a legal action against Ireland by the European Commission (EC). The adjournment was turned down by the High Court in February 2008 but has been appealed to the Supreme Court.
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Eight individuals from Cork and the Ringaskiddy Residents Association have appealed the High Court decision to the Supreme Court. The appeal was heard in June, 2008 and the Supreme Court reserved judgement at that time.

The applicants are asking for an adjournment of the two Judicial Reviews until after the European Court has ruled on the European Commission (EC) Case against Ireland.

The Irish State is due before the European Court on the grounds of non-compliance with the EC Directive on Environmental Planning (EIA). The EC has stated that in its opinion Ireland has failed to comply with European Law in relation to proper Environmental Assessment for major projects. The adjournment of the Judicial Reviews is being sought as this non-compliance is one of the legal points of argument in both cases. A spokesperson for CHASE said that the Supreme Court decision is "a matter of great concern to us and to anyone looking for proper implementation of planning laws".
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Supreme Court decides not to adjourn legal proceedings regarding the Ringaskiddy incinerator until after the European Court has ruled on a European Commission (EC) Case* against Ireland. This clears the way for the High Court challenge to proceed to trial.

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Irish Times (07-11-07): Incinerator Case Ruling Reserved
Irish Times (01-11-07): Delay to incinerator challenge sought
Irish Examiner (01-11-07): Europe ruling to affect incinerator challenge outcome
Irish Times (19-02-08) - Efforts to Adjourn Incinerator Cases Fails
Irish Times (26-02-08) - Challenge to incinerator
Irish Times (10-06-08) - Court Reserves Ringaskiddy Judgement
Irish Times (02-08-08) - State seeking costs in incinerator row

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Irish Times - 07-11-07
Incinerator case ruling reserved
by Mary Carolan

The High Court has reserved judgment on an application by local residents to adjourn two legal challenges to the proposed €75 million development of the State's first hazardous waste incinerator at Ringaskiddy, Co Cork, pending the outcome of a legal action against Ireland in the European Court of Justice.

The European Commission has brought proceedings against Ireland based on its formal view that Ireland has failed to properly transpose into Irish law an EU directive relating to the environmental impact assessment o public and private projects, including incinerators and projects affecting important archaeological sites such as the proposed N3 motorway near the Hill of Tara.

Among the grounds on which the Ringaskiddy residents had initially challenged the proposed incinerator development is that the same directive was not properly transposed.

The State has opposed the application to adjourn two legal challenges involving the residents until the European Court of Justice has decided the matter. The State contends the High Court is bound at this stage by a Supreme Court decision earlier this year rejecting a challenge by Eric Martin to the development of an incinerator in Co Meath in which the Supreme Court dismissed claims that the directive was not properly transposed.

The Supreme Court had also refused Mr Martin's request to refer to the European Court of Justice the issue of whether the directive was properly transposed.
© 2007 The Irish Times

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Irish Times - 01-11-07
Delay to incinerator challenge sought
by Mary Carolan

Campaigners opposed to the State's first hazardous waste incinerator want to put their legal challenge to the project on hold until separate proceedings before the European Court of Justice are concluded.

The legal challenge has been initiated by local residents opposed to the planned €75 million incinerator at Ringaskiddy, Co Cork.

Counsel for the residents told the High Court yesterday that their challenge would be profoundly affected by the European Commission's decision to bring a legal action against the State to the European Court of Justice.

The commission's case is based on its formal view that Ireland has failed to properly transpose into Irish law an EC directive relating to the environmental impact assessment of public and private projects, including incinerators and projects affecting important archaeological sites such as the proposed N3 motorway near the Hill of Tara.

Among the grounds on which the Ringaskiddy residents had initially challenged the proposed incinerator development is that the same EC directive was not properly transposed.

The State, however, is opposing the application by the residents to adjourn. The hearing of the adjournment application opened yesterday before Mr Justice Patrick McCarthy at the High Court and continues today.

The State is insisting that the court is bound at this stage by a Supreme Court decision earlier this year rejecting a challenge by a Co Meath man, Eric Martin, to the development of an incinerator in Co Meath.

In this case the Supreme Court dismissed claims that the EIA directive was not properly transposed. The Supreme Court had also refused Mr Martin's request to refer to the European Court of Justice the issue of whether the directive was properly transposed.

If the European Court of Justice decides the directive was not properly given effect to, then that decision effectively nullifies the Supreme Court decision as European law takes precedence over domestic law, Michael Collins SC, for the residents, said yesterday.

In those circumstances, he asked the judge to adjourn the two sets of proceedings challenging the incinerator development until the European Court of Justice gave its decision.

The court was due yesterday to begin hearing a judicial review challenge by several local people to the incinerator development.

That action is against An Bord Pleanála and the State and arises from the board's decision on January 15th, 2004 to grant permission to Indaver NV, trading as Indaver Ireland, to construct the development.

In the second proceedings, the Ringaskiddy and District Residents Association is seeking leave from the court to bring proceedings against the Environmental Protection Agency and the State arising from that agency's decision to grant a waste licence for the development.

Earlier hearings were told that more than 20,000 people were opposing the incinerator development, which is intended to handle up to 100,000 tonnes of hazardous and non-hazardous industrial and commercial waste annually.

Mr Collins said his side had learned only last week from an Irish Times report that the European Commission had last June delivered a reasoned opinion outlining its view that Ireland was in breach of Directive 85/337 EEC as amended relating to the issuing of development consents for projects such as incinerators.

The commission took the view that the State was in breach because the system which it had established when considering such projects did not provide for an "integrated" assessment.

© 2007 The Irish Times


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Irish Examiner - 01-11-07
Europe ruling to affect incinerator challenge outcome

A RESIDENTS’ challenge by to a €75 million plan for the State’s first hazardous waste incinerator in Co Cork will be profoundly affected by the European Commission’s decision to bring a legal action against Ireland, the High Court was told yesterday.

The commission’s case is based on its view that Ireland has failed to properly transpose into law an EC directive relating to the environmental impact assessment of public and private projects, including incinerators and projects affecting archaeological sites such as the proposed N3 motorway near the Hill of Tara.

Among the grounds on which the Ringaskiddy residents challenged the incinerator development is that the same EC directive was not properly transposed.

However, the State is opposing an application by the residents to adjourn their legal challenge until the European Court of Justice has decided the matter. The hearing of that application adjournment opened yesterday before Mr Justice Patrick McCarthy and continues today.

The State is insisting that the High Court is bound at this stage by a Supreme Court decision earlier this year rejecting a challenge by Eric Martin to the development of an incinerator in Co Meath, in which the Supreme Court dismissed claims that the EIA directive was not properly transposed. The Supreme Court had also refused Mr Martin’s request to refer to the European Court of Justice the issue of whether the directive was properly transposed.

If the European Court of Justice decides the directive was not properly given effect to, then that decision effectively nullifies the Supreme Court decision as European law takes precedence over domestic law, Michael Collins SC, for the residents, said yesterday.

In those circumstances, he asked the judge to adjourn the two sets of proceedings challenging the development until the European Court gave its decision.

The court was due yesterday to begin hearing a judicial review challenge by several local people to the development. That action is against An Bord Pleanála and the State and arises from the board’s decision on January 15, 2004, granting permission to Indaver NV, trading as Indaver Ireland, to construct the development.

In the second proceedings, the Ringaskiddy and District Residents’ Association are seeking leave from the court to bring proceedings against the Environmental Protection Agency and the State.

Among the grounds on which the residents secured leave to bring their challenge against An Bord Pleanála and the State was a claim that the Environmental Impact Statement submitted by Indaver was inadequate. That case was put on hold pending the outcome of Mr Martin’s challenge.

Following the Supreme Court rejection of Mr Martin’s case, the residents effectively abandoned the grounds relating to the EIA directive but say they want to await the result of the European Court of Justice case.

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Irish Times - 19-02-08
Effort to adjourn incinerator cases fails

Local residents have lost a High Court bid to adjourn two legal challenges to the proposed €75 million development of the State's first hazardous waste incinerator at Ringaskiddy, Co Cork.

However, they may appeal the refusal of the adjournments to the Supreme Court.

The residents had sought the adjournments pending the outcome of a legal action against Ireland in the European Court of Justice brought by the European Commission based on its formal view that Ireland has failed to properly transpose into Irish law an EU directive relating to the environmental impact assessment of public and private projects, including incinerators and projects affecting important archaeological sites such as the proposed N3 motorway near the Hill of Tara.

Among the grounds on which the Ringaskiddy residents had initially challenged the proposed incinerator development is that the same EU directive was not properly transposed.

The State had opposed the application to adjourn two legal challenges, arguing the High Court was bound at this stage by a Supreme Court decision last year rejecting a challenge by Eric Martin to the development of an incinerator in Co Meath in which the Supreme Court dismissed claims that the EU directive was not properly transposed.

The Supreme Court had also refused Mr Martin's request to refer to the European Court of Justice the issue of whether the directive was properly transposed.

The hearing of the adjournment application concluded last November before Mr Justice Patrick McCarthy who reserved judgment.

In his decision yesterday the judge said he was bound by the decision of the Supreme Court in the Martin case in relation to the correct interpretation of the directive and also by that court's refusal to refer the matter to the European Court of Justice. The Martin decision meant domestic law was "unambiguously" to the effect that the directive was validly transposedinto Irish law, he said.

The judge said he was bound for every purpose in domestic law by the Supreme Court decision as to hold otherwise would place him in breach of a fundamental principle of our law.

The first set of proceedings which was sought to be adjourned was a judicial review challenge by local people to the incinerator against An Bord Pleanála and the State following the board's decision in January 2004 granting permission to Indaver Ireland to construct the development.

© 2008 The Irish Times

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Irish Times - 26-02-08
Challenge to incinerator

Local residents are to appeal to the Supreme Court against the High Court's refusal to adjourn two legal challenges to the proposed €75 million development of the State's first hazardous waste incinerator at Ringaskiddy, Co Cork.

The residents had sought the adjournments pending the outcome of a legal action brought against Ireland in the European Court of Justice by the European Commission.

This action is based on the commission's formal view that Ireland has failed to transpose into Irish law an EC directive on the environmental impact assessment of public and private projects, including incinerators.

© 2008 The Irish Times

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Irish Times - 10-06-08
Court Reserves Ringaskiddy Judgement
by Mary Carolan

The Supreme Court has reserved judgment on an appeal by local residents against the High Court’s refusal to adjourn two legal challenges to the proposed €75 million development of the State’s first hazardous waste incinerator at Ringaskiddy, Co Cork.

The residents want the adjournments pending the outcome of a legal action brought against Ireland in the European Court of Justice (ECJ) by the European Commission based on the Commission’s formal view that Ireland has failed to properly transpose into Irish law an EC directive relating to the environmental impact assessment of public and private projects, including incinerators.

Among the grounds on which the residents initially challenged the proposed incinerator development is that the same EC directive was not properly transposed.

The High Court last month refused to adjourn the challenges and the five judge Supreme Court today heard the appeal against that refusal and reserved its decision.

The State has argued the High Court was bound at this stage by a Supreme Court decision last year rejecting a challenge by Eric Martin to the development of an incinerator in Co Meath.

In the Martin case, the Supreme Court dismissed claims that the EIA Directive was not properly transposed and also refused Mr Martin’s request to refer to the ECJ the issue of whether the directive was properly transposed.

In refusing to adjourn the challenges, Mr Justice McCarthy ruled he was bound by the Supreme Court ruling in the Martin case as that decision meant domestic law was “unambiguously” to the effect that the directive was validly transposed into Irish law.

The first set of proceedings sought to be adjourned is a judicial review challenge by several local people to the incinerator development brought against An Bord Pleanála and the State following the board’s decision on January 15th 2004 granting permission to Indaver NV, trading as Indaver Ireland, to construct the development.

In the second proceedings, the Ringaskiddy and District Residents Association are seeking leave from the court to bring proceedings against the Environmental Protection Agency and the State arising from the EPA’s decision to grant a waste licence for the development.

The incinerator is intended to handle up to 100,000 tonnes of hazardous and non-hazardous industrial and commercial waste annually.

© 2008 ireland.com

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Irish Times - 02-08-08
State seeking costs in incinerator row
OLIVIA KELLEHER

RESIDENTS OF Cork Harbour who object to the proposed development of a €75 million incinerator at Ringaskiddy have accused the State of bullying after moves were made to seek legal costs against them.

Green Party senator Dan Boyle supported their comments and described the State’s intention to pursue costs against individuals who objected to the Ringaskiddy incinerator as “legal bullying”.

On Thursday, the Supreme Court rejected a bid by local residents to further adjourn two legal challenges to the incinerator.

Residents have now learned the State is seeking legal costs for the case, to be assessed in October.

Local environment action group Cork Harbour Area for a Safe Environment (Chase) claim they are following an important legal principle – that national cases such as this can be adjourned pending a decision at the European Court of Justice.

Mary O’Leary, speaking on behalf of Chase, said it appeared they were being punished for seeking good planning policy to be written in to Irish law.

“While we are outraged really . . . this is a point of public interest. This is to ensure that in the future we will have proper planning. It is a form of bullying. It is trying to intimidate communities. We are doing this because we have seen the shortcomings of the planning process . . . it doesn’t deal adequately with health and environment.

“We have never had our questions answered either by An Bord Pleanála or the EPA. The reason why we pursue this is because it is an important legal point.”

The residents wanted the adjournments pending the outcome of a legal action against Ireland in the European Court of Justice. The case is being taken by the European Commission based on its formal view that Ireland failed to transpose properly into Irish law a commission directive relating to the environmental impact assessment of public and private projects, including incinerators.

Mr Boyle said community groups have been following an important legal principle – that national cases can be adjourned pending a decision at the European Court of Justice.

“The Supreme Court has decided that the cases can be heard in parallel, and those who have taken this action have accepted this verdict. To further seek a pound of flesh by asking for costs from ordinary citizens . . . whose actions are motivated only by having the law in this area clarified, amounts to legal bullying. ”

Mr Boyle said the Green Party cannot be associated with the use of the legal system as a form of intimidation against those whose only motivation is the maintenance of the highest possible standards of environmental protection.

© 2008 The Irish Times

     

Cork Harbour Alliance for a Safe Environment
Bishop's Road, Cobh, Co. Cork
Tel - 021 481 5564      Email - info@chaseireland.org
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