Judgment of Mr. Justice John MacMenamin dated 8th day of July, 2009.
1. On 30th July, 2008, the first named respondent (“the Board”) granted planning permission to the second named notice party (“Greenstar”) for the development and operation of an engineered residential landfill at Usk, Co. Kildare. This facility is intended over a period of ten years to accept annually some 200,000 tonnes of non-hazardous, non-reducible waste. The applicants (“the residents”) seek an order of judicial review by way of certiorari quashing the Board’s decision.
2. In all, the decision contains 25 conditions. These relate broadly, to the manner of construction of the cells; the designation of areas for the deposit of waste material; landscaping; restoration; wildlife; and environmental and archaeological considerations. The conditions also deal with ultimate capping of the various cells or cavities of the landfill once filled with waste.
3. The judgment which follows considers a number of issues relating to the impugned decision, which are arranged in the sequential parts as follows:-
I. a claim of objective bias or want of fair procedures made by the residents;
II. an alleged failure by the Board to address the non-implementation of a previous order of this Court under s. 160 of the Planning Acts in Usk Residents Ltd. v. Kilsaran Concrete Ltd. No. 59 MCA, (High Court, Quirke J., 1st December 2004) (“the Kilsaran order”), which directed remediation works to be carried out prior to the institution of the development;
III. a further alleged failure by the Board to address itself to relevant environmental considerations which should by law have been contained in the permission;
IV. a procedural issue with regard to a change in stance taken by Ireland and the Attorney General as regards the permission; and
V. an allegation that the Board unlawfully failed to comply with the European Community Environmental Directives applicable to the development.
4. The residents’ legal war of attrition against this development has a long history. Insofar as material, they brought claims against the site’s owners, Kilsaran Concrete Ltd. under s. 160 of the Planning and Development Act 2000 (“the Kilsaran proceedings”). They initiated a separate judicial review claim against the Environmental Protection Agency. An earlier set of judicial review proceedings brought against the Board culminated in a judgment of Kelly J. on 14th March, 2007 (“the 2007 High Court judgment”). There, he quashed an earlier decision granting permission, made on 26th July, 2006, but remitted that issue back to the Board for reconsideration. That prior decision and the terms of the 2007 High Court order made thereon are material to this present application.
The proposed development
5. The entire waste facility in question is intended to cover a total of 19.3 hectares, while the footprint of the landfill itself is to be approximately 12.5 hectares.
6. The project is designed to proceed in phases. Greenstar intend to construct specially prepared large cavities on the site, a former quarry, to be numbered from one, (northwest), through to six (southwest). These are to be filled with waste clockwise in numerical sequence, then temporarily capped. There is to be a specially devised lining system for these cavities or cells. Provision is made for leachate collection and management, landfill gas collection and treatment, and ancillary facilities. The developer is required to install a surface water management system prior to the commencement of any other construction work at the facility. According to the application and permission, it is intended that, at the end of this ten-year period, the facility will be restored to agricultural and ecological use.
General outline of the application and other legal proceedings brought by the residents
7. Greenstar lodged its original application for planning on 10th December, 2001. On 8th June, 2004, the Environmental Protection Authority (“E.P.A.”) issued a waste licence intended to govern the operation of the landfill. The residents’ legal challenge to this ultimately failed. But on 30th September, 2004, the planning authority, Kildare County Council, refused permission for the development. This decision was appealed to the Board. On 27th October, 2004, the Board received first and third party appeals from Greenstar and the residents respectively. Meanwhile, the Usk residents initiated proceedings under s. 160 of the Planning and Development Act 2000, against Kilsaran Concrete Ltd., then, and even now, the actual owners of the quarry. Quirke J. made the “Kilsaran order” on 1st December 2004.
8. Pursuant to s. 160 of the Planning and Development Act 2000, he directed the restoration of the quarry, and restrained any further unauthorised development of the site. Kilsaran was ordered, to restore the lands insofar as practicable to a condition suitable for agricultural use – the appropriate condition to be determined by an expert to be appointed. This was to take due account of safety factors and best environmental practice, as the facility was close to the Usk marshes, a proposed Natural Heritage Area (p.N.H.A.). These restoration works were to be carried out under the supervision and direction of the expert appointed pursuant to the order. Remarkably, this order has not been implemented despite the fact it was made five and a half years ago. The expert has not even yet been appointed. The lands the subject matter of that 2004 court order comprise a significant portion of the lands affected by the intended development.
9. I turn now to the first of the five issues which require determination, the allegation of objective bias.
I. The objective bias issue
10. A full consideration of the bias allegation makes it necessary to outline a further and more detailed chronology of events. On foot of the appeal against Kildare County Council’s refusal of permission, the Board’s planning inspector held an oral hearing, which took place between 26th and 29th April, 2005. On 19th July, 2005 the inspector furnished her report consequent on that hearing. This recommended refusal of permission for four reasons, which are not at present material. On 24th July, 2006 the Board declined to follow the recommended refusal, and instead decided to grant permission, subject to a range of conditions. On 22nd September, 2006, the residents brought judicial review proceedings challenging the lawfulness of the Board’s proceedings. These were transferred into the Commercial List of the High Court. Prior to the hearing of that application, the Board’s solicitors indicated by letter dated 23rd January, 2007 that it was conceding the residents’ entitlement both to leave and to substantive judicial review.
11. In the concession letter two primary reasons were given for the Board’s decision to concede relief. First was the absence of satisfactory records leading to the decision to grant the permission. Second was the fact that for a period of time, the planning files to be maintained by the Board in this matter were, contrary to law, unavailable to the public. The Board’s solicitors described both issues as “unusual circumstances”. The concession letter contained an outline as to how this situation had arisen.
12. Those judicial review proceedings were heard by Kelly J., on 26th February, 2007. In the light of the concession the main question before him was the form the remedy should take. Two affidavits were sworn on behalf of the Board, one by its chairman Mr. John O’Connor, the second by Mr. Brian Swift, a Board member whose conduct in a number of procedural aspects was criticised by the residents. These affidavits were largely confined to the circumstances surrounding the two reasons just identified.
13. In fairness to the Board, its solicitor’s letter went to some lengths to explain why these irregularities had occurred. However there was no further affidavit evidence before that court to address additional allegations by the residents regarding what they said were yet further procedural irregularities by Mr. Swift and a Board official. These related to a series of other alleged failures to follow appropriate procedure in processing the Greenstar application; an apparent absence of explanation as to why these had occurred; documents, Board memoranda and decisions placed out of chronological date sequence on the planning file; and failure to account for the manner in which various recitals and conditions had been devised and communicated between Board members and officials. Had the matter then proceeded to full hearing, these points would have undoubtedly required a full answer in appropriate form. I emphasise that these were allegations only; they were not the subject of a court finding or order.
14. I do not consider that these matters are “res judicata” for the purpose of these proceedings. They form part of the factual background for Kelly J.’s decision; and that decision is now the starting point for this aspect of the current judicial review application. What was submitted on behalf of the Board on that occasion, is relevant to the orders, recommendations and observations made in 2007 in relation to the manner in which the Board should subsequently conduct its procedure on remittal. What the Board actually did afterwards must be assessed by reference to the submissions made and the subsequent judgment.
The 2007 High Court judgment and hearing on the form and extent of the remedy
15. In the judgment Kelly J. observed that, whilst the applicants had raised other grounds which might arguably have provided an additional basis for granting certiorari, it was not in the interest of anybody that the public time of the court, or the expensive time of the litigants and their advisers, be expended on such exercise. He considered that judicial restraint dictated that the court should confine itself to facts and findings necessary to support an order of certiorari, and should not go further.
16. He recalled that he had granted permission to the applicants to amend their statement of ground to comprise a further claim, relating to a further unusual circumstance in which the permission had been granted. In addition to the two reasons given earlier, the Board also accepted that some of its members involved in the decision making panel, had no recollection of any draft conditions being considered at a Board meeting prior to the impugned decision. Other panel members, including Mr. Swift and the chairman, said they did recollect such a discussion. For these reasons the judge permitted an amendment of the residents’ grounds so as to include a further plea that the Board had failed adequately to record its decision approving the conditions attached to its decision of 24th July, 2006.
17. The judgment considered legal authorities relating to the discretion of the High Court to remit an impugned decision for reconsideration. It concluded that the matter should be remitted. The judge observed that the applicants had no complaint as to the way in which the matter had been dealt with up to a specific date, viz. 3rd August, 2005, the date upon which the Board’s inspector decided to send to Greenstar what is known as a “section 10 request” for further information. The residents were concerned as to the circumstances in which this request was issued, and the way in which Greenstar’s reply was processed after that identified date. They raised serious objection to further steps by which the Board then processed the application. But the judge thought that it would be unjust not to remit the case for further consideration. He observed:-
“… to refuse to remit would be disproportionate to the rights and entitlements of Greenstar, having regard to the limited complaints made and even more limited basis upon which certiorari is being granted.”
“Apart from the great expense and inconvenience which would be caused by sending the project back to the drawing board, it would also lead to an inevitable and disproportionate delay in having the matter finally decided. I am firmly of the view that this is an appropriate case in which the court ought to make an order remitting the matter to the Board. However in doing so, I propose to make a number of recommendations which ought to address the applicant’s complaints, real or perceived.”
18. He continued:-
“The applicant contends that it has no faith in the impartiality or objectivity of the Board in respect of the development. At various stages in its affidavit evidence it has described the Board as having dealt with the matter in a peculiar, extraordinary, extremely odd or incredible way.
I make no adjudication whatsoever on these allegations since they are not germane to what I have to decide. Even if there is a basis for this lack of faith in the Board, the plain fact is that it is the only body authorised to adjudicate on planning appeals. Consequently, even if I refuse to remit the matter and the planning process had to begin all over again, inevitably it would be the Board that will have to decide on the development. Consequently, any loss of faith that the applicant has is something about which nothing can be done since the Board is the sole body appointed by the legislature to make ultimate decisions on planning applications.”
19. But he inserted this rider:-
“That said, however, I propose to make a number of recommendations which, without in any way accepting the validity of any of the complaints made by the applicant, will minimise the risk of further judicial review.” (emphasis added).
The judge referred to the Board’s statutory power to reopen an inspector’s hearing. He added then:-
“It is not open to me to direct the reopening of the oral hearing. Indeed to do so would be quite an improper trespass by me upon the discretion vested in the Board. That said, I ought to record that counsel on behalf of the Board indicated that in his view this would be an entirely proper way for the Board to approach the matter. He furthermore assured me that the Board would, of course, be inclined to follow any legal advice proffered to it in this regard.” (emphasis added).
The judge expressed his recommendation thus:-
“With a view to minimising the risk of further judicial review, it would be prudent and correct for the Board to exercise this discretion and to reopen the oral hearing. That would provide a forum for all of the parties to place up-to-date information before the Inspector and also to agitate any other questions considered appropriate.”
20. He then made this important recommendation:-
“Counsel informs me that the Board consists of ten members. Only five have had any involvement with this application. Again, I would think it prudent that henceforth the matter remitted to the Board ought to be dealt with as considered only by or from amongst the other five members of the Board. This suggestion is not to be taken as in any way an acceptance by me of the criticisms which have been made in the affidavits on the part of the applicant. There may or may not be substance in them. It is not necessary for me to adjudicate upon them. The suggestion that I make is to ensure that a risk of further judicial review is minimised.” (emphasis added.)
This was a reference to the further issue which had been raised by the residents to which the Board had not filed replying affidavits. I reiterate that it is unnecessary for the residents’ case that I adjudicate on these issues. I have not been asked to do so.
21. The court order made on foot of the judgment, recited that the court “strongly recommended” that an oral hearing be re-opened. It reiterated the recommendation that, on remittal, the issue should be dealt with by members of the Board who had not had a previous involvement in the case. In fact this did not occur, and four of the Board members who participated in the unanimous 2006 decision, then as part of a six person panel, considered and unanimously granted the 2008 application impugned in these proceedings. I turn first to the legal principles generally applicable.
Legal principles applicable to objective bias
22. Objective bias is to be distinguished from subjective bias. To establish the former, it must be shown that there existed some factor, extraneous to the decision-making process, which could give rise to a reasonable apprehension that the decision-maker might have been biased. An overt or declared bias is an example of this. This comes under the heading of pre-judgment. O’Neill v. Beaumont Hospital Board  I.L.R.M. 419 was an illustration of this concept.
23. The test Finlay C.J. applied there was whether members of that hospital board had gone so far as to express prior views on the issue before them in a very definite fashion, or if there had been an exercise of a judgment of the merits (as opposed to mere form) of the contested questions of fact which would go to determine the issue. As identified in O’Neill, “pre-judgment bias” is the expression of a view on the actual facts or merits of a decision, rather than on the correctness of a procedure or approbation of the actions of a person to whom a decision was delegated. It is an objective test (see Fennelly J. in O’Callaghan v. Mahon  2 I.R. 514.)
24. In an impugned decision of this type, the defence of “necessity” sometimes arises. But it is not a dominant doctrine. This plea was considered by Murphy J. in O’Neill v. Irish Hereford Breed Society Ltd.  1 I.R. 431. He observed that pre-judgment bias could not be tolerated on the basis of necessity in circumstances where it appeared that an alternative panel of a decision-making body (the Council of that Society) could have been established for the particular purpose of making a disciplinary decision. This alternative panel could have been composed of persons other than the members of another committee, known as the “editing committee”, in the Society which had already engaged in a preliminary judgment of a matter then going before the entire Council. He observed at p. 628 of the report:-
“Even allowing that the editing committee was carrying out a different function from that of the council it seems to me inescapable that those members of the editing committee who attended the meeting on 4th May, 1989, had pre-judged at least some of the crucial facts which fell to be decided by the council on 11th July, 1989, and had committed themselves to a view as to the consequences which should flow from their decision. On the face of it this constitutes bias consisting of pre-judgment. It was not argued that such bias would have to be tolerated on the basis of the doctrine of necessity. It does not seem that such an argument could be made as it would appear that a quorum could have been established for the purposes of rule 13 of the rules of the defendant even in the absence of the members of the council who had sat on the editing committee. On this basis it seems to me that the plaintiff’s case must succeed.”
25. The nature of this objective test is perhaps best summarised in the statement of principle made by Denham J. at p. 441 in Bula Ltd. v. Tara Mines Ltd. (No. 6)  4 I.R. 412, referred to by Fennelly J. in O’Callaghan v. Mahon  2 I.R. at 514, p. 668 as being “decisive”. In Bula (No. 6) Denham J. said:-
“It is well established that the test to be applied is objective, it is whether a reasonable person in the circumstances would have a reasonable apprehension that the applicants would not have a fair hearing from an impartial judge on the issues. The test does not invoke the apprehension of the judge or judges. Nor does it invoke the apprehension of any party. It is an objective test - it invokes the apprehension of the reasonable person.”
26. In Mahon, Fennelly J. (for the majority of the Supreme Court) approved the test in O’Neill, insofar as it was one of a hypothetical observer neither oversensitive nor careless of his own position. This was properly comprehended in the notion of “the reasonable observer”. He pointed out that it was necessary that a person who apprehends there is a risk of bias invoke its existence where it is apprehended. He emphasised the objective nature of the test. It is not based on the apprehension, even reasonable apprehension of a party. It is the test that ought to be applied to the evidence in this case.
27. But one significant factor in this objective assessment must be what occurred in the 2007 judicial review, and the clear views of the judge who dealt with that earlier application. He considered the affidavits and submissions made by counsel for the residents and the Board; and thereafter made orders and recommendations to the Board as to how they should conduct their procedure. Clearly this new process on remittal was to be one of substance and not mere form. The recommendations were intended inter alia to avoid any perception of unfairness.
28. I do not say that the failure to follow judicial advice is ipso facto proof of objective bias. It is here but one aspect connected to the objective reasonableness of the well-informed observer. But the objective views of a judge in giving judgment would be difficult to ignore. The judgment was not appealed. The Board received formal notification of it on 17th April, 2007. What next occurred fell into three stages a) preliminary procedure; b) the renewed inspector’s hearing; and c) the Board’s reconsideration and grant.
a) The Board’s procedure on remittal
29. On 10th May, 2007, Mr. Michael Donlon, a senior executive officer of the Board and a deponent in these proceedings, sent a memorandum to a number of officials. He noted that it had been decided to re-open the Inspector’s oral hearing. The memorandum stated that Ms. Mary Cuneen, the inspector who had handled the file earlier would continue in this role, including conducting the re-opened hearing. He recorded that all documentation dating from 10th April, 2006, (including the Board’s directions up to 21st August, 2006) had been removed from the appeal file and placed in a “legal file”. He said that, on completion of all procedures in respect of the appeal file, the file of documents to go to the relevant Board members, should be sent first to the legal section prior to being sent to that deciding panel for final determination or direction. He wrote:-
“This is to give further consideration to the judge’s recommendation in respect to which Board members may decide the appeal file.”
30. In fact, the Board does not have a legal section per se, but rather a number of officials who deal with legal procedural issues. One should not conclude that this particular part of the memorandum implies that the Board was either seeking or obtaining legal advice. Indeed, remarkably, there is no evidence that the Board moved to obtain legal advice at all prior to embarking on the course of action now to be described.
31. It will be noted that Kelly J. recommended that all documents which had been created after 3rd August, 2005 should be removed from the file. By court order he directed that all records and entries relating to the decision of 26th July, 2006 should be quashed without further order.
32. By way of further background, the Environmental Protection Agency waste licence issued on 8th June, 2004, was amended on 17th September, 2007. This “technical amendment” included a proposal for a different composition, formulation and construction of the landfill liner. This liner might best be seen as a multi-layered “sandwich” of vital materials designed to insulate each of the six cells or cavities from the other and from the environment. The technical aspects of the liner’s construction and composition are considered later.
b) The resumed oral hearing
33. The inspector’s resumed oral hearing was scheduled for 23rd October, 2007. The residents became aware only then of the proposal for a different landfill liner. The Board had been apprised of this issue earlier. Counsel for the residents applied for an adjournment in order to take instructions on the point and in order to be in a position to place questions to the expert witnesses. He complained as to the “precipitous” manner in which Greenstar had introduced this new element into the hearing.
34. The hearing ultimately took place on 8th and 9th November, 2007. A number of expert witnesses were called and cross-examined on issues which were identified in a schedule devised by the inspector. On 18th January, 2008, a water expert, retained by the Board, Mr. Gerard Keohane, furnished a report. There he recommended that certain monitoring of water conditions to be part of any permission.
35. On 2nd May, 2008, a letter went from a Board official, Ms. Muiriosa Cassells, to Greenstar’s planning consultants, Ciaran O’Malley & Co. This correspondence reflects an issue which arose in correspondence on more than one occasion, that is Greenstar’s concerns about the delay in the decision, the likelihood of other landfill closures, and the possibility of a shortfall in waste management capacity. Ms. Cassells pointed out that the oral hearing had been postponed twice; and that there was a backlog of cases deferred due to a high workload resulting from an unprecedented intake of appeals in recent years. She wrote that the Board regretted the delay dealing with the appeal and that it was dedicating priority status to this case and others that it had found necessary to defer. She indicated that it was anticipated that a decision would be made by the Board within a short period of receiving the Inspector’s report which was due to be completed shortly. She acknowledged that this was a strategic infrastructure issue.
36. Clearly the Board was under time pressure to make a decision. This impression becomes stronger the further one analyses subsequent events. This letter was one of a number to the same effect.
37. Within a fortnight, on 12th May, 2008 the Inspector issued her report. She again recommended refusal of planning permission. She gave two reasons. The first related to visual impact; the second to the requirements for site restoration as set out in the Kilsaran order, which directed that remediation work be carried out on the site. The inspector felt the range and effect of this order was unspecific. It would have to be determined by the expert as yet not appointed. Its effect could not be predicted therefore. For this reason she considered the potential outcome of the 2004 court order as being so uncertain as to render premature the application for the development. She wrote that there was no certainty in relation to what she termed the “baseline conditions” as outlined in the environmental impact survey upon which the proposed development was predicated. The remediation works had not been determined by the expert arbitrator - the nature of the arbitrator’s directions were, she wrote, unknown and unknowable.
c) The Board’s consideration
38. On 17th June, 2008, Mr. John O’Connor, the Chairperson of the Board, wrote in a memorandum:-
“I discussed the above appeal with the deputy chairperson on 17th June, 2008, in the light of the recommendation of Mr. Justice Kelly that the case be considered by a board comprised of different members from who participated in the quashed decision. Having regard to the facts
(a) the project in question is a major and significant infrastructural development which would, in accordance with established practice within the Board, be decided at a board meeting involving the chairperson and deputy chairperson, and,
(b) the exclusion of the five members who took the quashed decision would seriously weaken the level of experience and expertise that will be brought to bear on determination of the case at board level;
It was agreed that the most appropriate course would be to convene a meeting of all available board members, (i.e. those who participated previously and those who did not, to decide the appeal).” (emphasis added).
39. In contrast to the 2007 judicial review proceeding, neither the chairman, nor any other member of the Board, has sworn an affidavit herein. Each of the affidavits were sworn by Board officials. No notices to cross-examine were served in these proceedings.
40. There are four observations to be made here. First, clearly, the Board decided to ignore Kelly J.’s recommendation as to the composition of the deciding panel. The recommendation was intended to avoid the perception of bias. Second, the chairman and deputy chairman maintained that there was an “established practice” that they, specifically, should be involved in significant infrastructural development decisions. The necessary consequence of this was, apparently, that one, or both of them, should be involved in this decision notwithstanding the recommendations from the High Court. The rationale for this stance is not clear. Third, there is the surprising contention that the exclusion of the five members who took the quashed decision would “weaken the level of experience and expertise” available to the Board.
41. One of the exhibits admitted in this case is a letter sent by Ciarán Cuffe, T.D., to the Minister for the Environment, John Gormley, T.D., seeking the Curriculum Vitae of five members who were excluded from the ultimate decision. These were exhibited in these proceedings. They do not demonstrate any want of qualification on the part of the five members not so involved. To the contrary, I think they demonstrate a high level of expertise in the planning and environment area.
42. Of course, this is not to cast any reflection on the experience of the chairman and deputy chairman. The Board records show that one or both of them did in fact deal with this type of application. The outcomes varied. The chairman, prior to his appointment, was an Assistant Secretary in charge of planning and development in the Department of the Environment and Local Government. The deputy chairperson was previously a senior Executive Engineer in the Planning Department of Meath County Council. Clearly, then, both were eminently qualified in every way to deal with this issue. The Board decisions ranged from approval to refusal. But this is not the point. In fact there was no statutory rationale or objective justification for specific categories of decision being dealt with by any particular Board members. This is a matter of some importance in the light of one aspect of the defence relied on by the Board, that is to say, that its members were required, in the performance of a legal duty to deal with the remitted application.
43. The fourth point is that as of 17th June, 2008, the chairperson and deputy chairperson in fact envisaged that all Board members would decide the appeal. This was to include both those members who had participated previously in the decision and those who had not. This course was not in accordance with any of the 2007 court advices or observations either. As pointed out earlier, there is no evidence that the Board had taken legal advice. One might have thought especial care might have been taken in the circumstances. A statutory body entrusted with decision-making of some national importance which takes it upon itself to ignore the spirit (if not the letter of an order) of the High Court as to how it should proceed in a remittal, surely bears an additional onus to ensure that what it does is fair, in order to avoid the perception of prejudgment in appearance and reality and in accordance with law.
The 2007 recommendations as to the Board’s future procedure on remittal
44. A number of the exchanges between senior counsel acting for the Board in 2007 and Kelly J. are material. These were recorded in typed attendances made by one of the residents’ solicitors at that hearing. The Board did not dispute their content. In fact these notes were referred to by Counsel for both applicants and respondents in the course of submissions here.
45. In 2007 it was necessary to deal with the “cut-off date”, beyond which point the applicants considered that they had been treated unfairly. The judge referred to the documents and memoranda created by the Board after that date. Paraphrasing submissions from counsel for the residents, he made an observation, in graphic terms, in reference to those documents created after 3rd August, 2005:-
“They should throw all of them into a bonfire as they have a poor recollection of what happened before then.”
He was referring here to the situation, where as it had emerged, some Board members said that they had little or no recollection of discussing the conditions on the earlier permission. It was asserted by others that the Board met and discussed conditions on 20th June, 2006 but there were no minutes or record of such meeting.
46. These circumstances ultimately led the judge to make the order that:-
“In lieu of directing that an order of certiorari do issue, it is ordered that the aforesaid decision dated the 24th day of July, 2006, and all records and entries relating thereto be quashed without further order.” (emphasis added).
47. The residents incurred significant experts’ costs in the first oral inspectors hearing. In the renewed hearing, conducted by the inspector on foot of Kelly J.’s order, the residents incurred further significant costs, which expenses are said to have come to a fraction of their total legal costs. The residents assert that when they embarked on the second oral hearing, they did so on the understanding that the advice, recommendations and orders of the High Court would be followed; that the matter would be heard by members of the Board who had not previously dealt with the matter, and that the matter would be considered afresh. They acted on the understanding that documents and records on file, including the final decision, would not be made available to the newly constituted Board. All of these, they contend, were necessary in order to ensure a fair hearing and to remove any perception of partiality.
48. They say now that if they had been aware that the same members of the Board who had considered the matter were again the decision-makers, they would have had recourse to the courts; they add that if they had been aware that the former planning permission would be used as a template for the permission now impugned, they would not have participated in the second oral hearing at all.
Issues arising from the general principles identified
49. Derived from the authorities, a number of questions then arise. These include:-
(i) To what extent did the Board actually follow the advice in the judgment and order?
(ii) Did some or all of the same Board members who made the 2006 decision make the 2008 decision?
(iii) Did the impugned decision relate to the same issues?
(iv) Was the 2008 decision effectively the same decision made by some or all of the same persons who made the 2006 decision?
(v) Was the 2008 decision a purely “formal” one, or did it involve a consideration of the merits and demerits of the proposal and a furnishing of a reasoned determination?
(vi) Was there a legal or objective rationale for the Board’s procedure?
(vii) If there was apparent objective bias can the Board avail of a defence of legal duty?
The panel members who considered the decisions
50. The clear, uncontroverted evidence discloses that the members of the Board, who considered the appeal in 2006, were (i) the Chairperson, Mr. John O’Connor, (ii) Deputy Chairperson, Mr. B. Hunt, and Board members, (iii) Mr. B. Swift, (iv) Mr. K. Kent and (v) Ms. M. Bryan. One might have thought all these Board members might have felt precluded from dealing with the 2008 decision upon remittal in the light of the observations in and intent of the 2007 judgment. The Board did not instruct its counsel to make any submission then of “necessity” or “legal duty”, still less any “established practice” in relation to specific members of the Board having a particular expertise, experience, or responsibility. In fact, the judge specifically noted that there were ten members of the Board. The Board did not instruct its counsel to make any legal point about qualifications, or the Board’s practice in relation to strategic infrastructure projects.
51. As matters evolved, the full Board did not in fact consider the 2008 application. It was decided to compose a Board panel of six members. But these were not all members who had been envisaged as coming to the matter ‘afresh’. In fact, four out of the six selected had participated in and made the first, 2006, decision. The members of the Board on 24th July, 2008, who considered this second determination, were the (i) Chairperson, Mr. John O’Connor, (ii) the Deputy Chairperson, Mr. Brian Hunt, (iii) Mr. K. Kent, (iv) Ms. M. Bryan, (all of whom participated in the 2006 decision); and two additional members who had not, Ms. M. Byrne and Mr. T. O’Connor. The decision was unanimous.
52. Mr. Donlon avers that a different Board member, Ms. M. Byrne, was assigned to be the “presenting member”, that is a member charged with putting before the Board the circumstances and relevant facts relating to the application. He also deposed that Mr. Swift, the presenting member on the first occasion the appeal came before the Board and whose procedure had been put in question previously was “not available” for the 2008 decision.
Circumstances of duty?
53. A person who is subject to a disqualification or preclusion in law may be required to decide a matter if there is no other competent tribunal or if it cannot be formed without that person. In such circumstances the doctrine of necessity is applied in order to prevent a failure in decision-making.
54. If it is possible to constitute a different panel or tribunal unaffected by interests of bias no difficulty arises. By way of extreme illustration a case is reported as having come before the Supreme Court of Texas involving an organisation called the “Woodmen of the World” of which all the judges of the court were members. Hence the entire court was deemed to be disqualified from presiding over a case involving that group. In order to meet the situation, the governor of Texas appointed a special court composed of three women (Johnson v. Darr 144 Tex. 516 272 S.W. 1098 ) (see Richard E. Flamm ‘Judicial Disqualification’ 2nd Ed., (Banks & Jordan Law Publishing Co., 2007 202 N 33 p. 581)).
55. The Board’s minutes do not record whether the panel read, or were referred to the Chairman’s memorandum of 17th June, 2008. They do not say whether the panel members were shown Kelly J’s judgment or order, or whether, as a panel they considered the question of objective bias.
56. In fact there were alternative Board members available. It is said one member of the Board who was not assigned might have faced a potential conflict of interest in the light of previous consultancy work. But there is no indication that he was asked to engage in this decision, still less that he recused himself.
57. A further Board member, Ms. Mary McMahon, was apparently available on the day of the decision, 22nd July, 2008 and signed directions in other decisions. In 2007 the court was told that, for a decision of this nature, the quorum was three Board members. There is no evidence before me that a different but quorate panel of the ten member Board could not have been brought together to consider this issue afresh.
58. Mr. Christopher Clarke, a Board official and a deponent here, outlined the extent of Ms. McMahon’s previous involvement in the 2006 decision, which apparently led her to recuse herself from the 2008 consideration. He averred:-
“I understand she had attended the oral hearing which preceded the first decision and that she did so in a personal capacity prior to her appointment as a Board member in order to refresh her knowledge of oral hearing procedures. Accordingly, having a prior knowledge of the case before she became a Board member, it was entirely appropriate that she should not participate in the determination of the appeal.”
I find this basis for recusal irreconcilable with the position adopted by the four Board members who, once having made the decision in 2006, chose or were assigned to make it again in 2008. If this cautionary precept had been appropriate for Ms. McMahon, surely a fortiori it was applicable to the four members just identified? The logic of the Board’s reasoning here is unfathomable.
Documentation from the 2006 consideration before the Board?
59. The Board minutes record that it considered the Inspector’s report of 12th May, 2008, as well as all other relevant documentation, including the inspector’s previous report of 9th June, 2006, and all the documents on the file from the receipt of the appeal on 27th October, 2004. Prima facie