You have been instructed in relation to a potential challenge of a decision of An Bord Pleanála (the “Board”) to grant permission to a developer known as ‘Biogas Plants Ltd.’ to construct and operate an anaerobic digestion plant.

You are instructed that the local planning authority refused permission on the basis that the proposed development contravened materially policy objective RH1 in the County Development Plan (“CDP”). On appeal by the developer, the Board’s Inspector concluded that the proposed development would not contravene materially RH1 in the CDP as it was not a zoning objective but rather a subjective policy objective which was open to interpretation. However, he recommended refusal on two grounds, namely traffic impact and the failure of the developer to provide adequate site location maps and drawings.

Notwithstanding that recommendation, the Board decided to grant permission subject to a number of conditions. In the Board Order, there is an assessment provided of the traffic impact and reasons given as to why the Board disagreed with the Inspector. However, the Order did not address the issue of whether the site location maps and drawings were adequate. The Board Order was also silent on whether the proposed development would contravene materially RH1 in the CDP.

One of the conditions that was imposed was a requirement on the developer to establish a community fund to be disbursed on an annual basis. Your client is aggrieved by this as the developer has been the subject of a number of District Court prosecutions for breaches of the Waste Management Act and Regulations.

Your client instructs you that the original site notice was deficient as it did not specify the volumetric throughput of the proposed development and stated that the name of the developer was ‘Biomass Plants’. You are also instructed that in the appeal lodged by the developer the appellant’s name was given as ‘Biomass Plants Ltd’.

Finally, you are instructed (and it is evident from the Board Order) that the Board had regard to a national policy document on anaerobic digestion and that one of the Board members was on the expert committee which drafted the policy. At the time the policy was prepared, the particular Board member was in private practice and was not a member of the Board. Your client also instructs you that the policy development was never subject to Strategic Environmental Assessment (“SEA”) and is of the firm view that it should not have been relied upon as a relevant planning consideration.
Please advise your client on whether there are any grounds of challenge and the merits of those grounds, having reference to statute and case-law.

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