High Court order company to pay costs of incinerator action

Tuesday 22 January 2013 11.30
ABP refused permission to Indaver for a waste incinerator in Ringaskiddy
ABP refused permission to Indaver for a waste incinerator in Ringaskiddy

A company's conduct of its action over being refused permission for a waste incinerator in Co Cork amounted to an abuse of process and it must pay the substantial legal costs of a residents group and An Bord Pleanála, the High Court has ruled.

While Indaver NV, trading as Indaver Ireland, withdrew its judicial review challenge on the eve of hearing last October, its conduct of the case allowed the legal costs of the Board and residents escalate almost as if the case was going to full hearing, President of the High Court Justice Nicholas Kearns said.

While Indaver would ordinarily be protected under Planning & Development Act 2000 from a costs order against it, the court would apply a special provision of that Act permitting an award of costs against a party due to the manner in which it conducted proceedings, he ruled.

That provision - Section 50B.3 - encompasses unnecessary prolonging of proceedings when the party no longer has a bona fide belief in its case, he said.

Section 50B was inserted following a European Court of Justice finding in 2009 that Ireland had failed to fulfil certain "access to justice" measures aimed at ensuring it is not prohibitively expensive for the public to seek judicial review regarding major development projects with potential to seriously affect the environment.

CHASE (Cork Harbour Alliance for a Safe Environment) 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.

ABP had refused permission in June 2011 for the hazardous and non-hazardous waste to energy facility proposed by Indaver for Ringaskiddy.

Indaver initiated judicial review against ABP in July 2011, CHASE was joined as a notice party in October 2011 and the case was listed for hearing on 23 October, 2012.

In its action, Indaver claimed material changes to the waste management plan for Co Cork occurred before ABP refused permission but those changes were not taken into account by the Board.

The Board claimed the judicial review was an attempt by Indaver to persuade the Board the policy context favoured a grant of permission when Indaver could have achieved the same outcome by making a fresh application for permission.

Keywords: indaver