An Taisce - The National Trust for Ireland v MxTigue Quarries Ltd

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 08 November 2016
• Neutral Citation: [2016] IEHC 620
• Court: High Court
• Docket Number: [2015 No: 302MCA]
• Date: 08 November 2016

IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACTS, 2000-2011 AND IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 160 OF THE PLANNING AND DEVELOPMENT ACT, 2000

BETWEEN

AN TAISCE – THE NATIONAL TRUST FOR IRELAND

APPLICANT

AND

McTIGUE QUARRIES LIMITED

&

GARY McTIGUE

AND

CAROLINE McTIGUE

RESPONDENTS

[2016] IEHC 620

[2015 No: 302MCA]

THE HIGH COURT

Planning & Development – S. 177O of the Planning and Development Act, 2000 – Substitute Consent – The Planning and Development (Amendment) Act 2010 – Failure to take remedial measures – S. 160 of the Planning and Development Act, 2000 – Injunctive relief Public interest – Discretionary remedy.

Facts: Following the grant of substitute consent to the respondents by the applicant in lieu of the implementation of decision of the Court of Justice in Case C-215/06, and non-adoption of remedial measures by the respondents thereof, the applicant had come to the Court seeking injunction for restraining the respondents from carrying out the quarrying activities pursuant to s. 160 of the Planning and Development Act, 2000. The applicant contended that the respondents were engaged in the activities not covered by the substitute consent. The respondents argued that the provisions of s. 160 of the Act of 2000 must be strictly construed and that since the onus of proof rested on the applicant, the applicant must adduce evidence to discharge the onus of proof.

Mr. Justice Max Barrett refused to grant the injunction sought by the applicant. However, the Court observed that the applicant was not precluded from taking an enforcement action against the respondents for carrying out the activities against which the substitute consent was obtained. The Court held that the substitute consent did not mean authorization to do what was forbidden, it merely regularised what was done previously to the consent and allowed the undertaking of certain remedial measures after the consent. The Court noted that the remedy under s.160 of the said Act of 2000 was discretionary and it should be exercised taking into account various factors such as public interest, commercial impact, undue hardship and behaviour of the parties. The Court found that though there was potential to grant the injunctive relief, yet the same could not be granted as the nature of activities carried on by the respondents did not pose an imminent danger to nature and environment. The Court also took into account the lax attitude demonstrated by the applicant for not taking timely enforcement action against the respondents.

JUDGMENT of Mr Justice Max Barrett delivered on 8th November, 2016.

I. Overview

1 The respondents operate a quarry in County Galway. The total quarry area is about 12.1 hectares, with the extracted area comprising about 8.6 hectares. The quarrying involves a number of processes and activities. These include the blasting, crushing and grading of rock. There are also truck movements in and out of the quarry. It appears not to be disputed that the quarry is in an area of scenic beauty and some environmental significance.

2 Back in 2010, significant changes to planning law as it relates to quarries were effected by way of the Planning and Development (Amendment) Act 2010. The changes were necessary because of the decision of the Court of Justice in Commission of the European Communities v. Ireland ( Case C-215/06). Among the changes made were the establishment of a substitute consent process whereby the legal position of quarry developments that had been done without an environmental impact assessment (EIA), screening for an EIA, or appropriate assessment (AA) could apply for a "substitute consent". The key provision in this regard was a new s.261A of the Planning and Development Act 2000, as inserted by the Act of 2010. Notably, for reasons that will be identified later below, a substitute consent regularised what was done previous to the consent, and allowed the undertaking of certain remedial measures after the consent, but, save as regards the taking of those remedial measures, it did not allow for continuing or future development of a quarry; such continuing or future development required separate planning permission to be obtained following the issuance of the substitute consent. (That, at least, was the sequencing before certain further amendments were made to the planning code last year. Those amendments post-date the events in issue in this application and so, are of limited interest for the purpose of the within proceedings).

3 In the present case, An Taisce maintains that the respondents have obtained a substitute consent but have engaged in continuing development that is unauthorised. As a result, An Taisce has come to court seeking injunctive relief pursuant to s.160 of the Act of 2000. The granting of such relief is a discretionary remedy.

II. What is the Effect of a Substitute Consent at Law?

4 Section 177O (' Enforcement') of the Planning and Development Act 2000 provides as follows:

'(1) A grant of substitute consent shall have effect as if it were a permission granted under section 34 of the Act and where a development is being carried out in compliance with a substitute consent or any condition to which the consent is subject it shall be deemed to be authorised development.

(2) Where a development has not been or is being carried out in compliance with a grant of substitute consent or any condition to which the substitute consent is subject it shall, notwithstanding any other provision in this Act, be unauthorised development.'

5 At first glance, a reading of s.177O(1) would suggest that the grant of a substitute consent, such as that issued by An Bord Pleanála on 5th January, 2015, is to be treated as if it were a grant of permission under s.34. A substitute consent is not a permission granted under s.34. However, the Oireachtas has given the same effect to both, and clearly intends that, for all intents and purposes, a consent, insofar as it applies, is to have the same effect as a permission.

6 Of course, it is dangerous to read any statutory provision without regard to the wider context in which it was enacted. A literal reading of one statutory provision may make perfect sense as a stand-alone reading of that provision but no sense when one has regard to the wider picture pertaining. And s.177O is something of an example par excellence in this regard. The literal reading of s.177O referred to above makes perfect sense if one reads s.177O in isolation. But it makes no sense when one has regard to the wider picture pertaining.

7 As An Taisce has noted, and as the court indicated in its overview, the substitute consent process was established, following the decision of the Court of Justice in Case C-215/06, to allow the retrospective regularisation of a quarrying development which had been carried out in the absence of an EIA, screening for an EIA, or AA, as applicable. A substitute consent application was required to be accompanied by a remedial EIA or a remedial Natura Impact Statement (where applicable). Such remedial statement was required to include a statement of the significant effects, if any, on the environment (which either had occurred or were occurring or which could reasonably be expected to occur because the relevant development was carried out). The effect of a substitute consent, An Taisce contends, was that where remedial measures were identified in the course of the application process, these and these alone, thanks to s.177O(1), could be done prospectively without falling foul of the planning code, unless of course there was a breach of s.177O(2).

8 In support of its reading of s.177O, An Taisce points to s.177K(2)(d) of the Act of 2000, as inserted by S. 57 of the Act of 2010 (and as applicable when the substitute consent at issue in these proceedings was granted), and s.177K(2)(d) as since amended by reg.6(b) of the European Union (Environmental Impact Assessment and Habitats) (No. 2) Regulations 2015. As enacted, s.177K(2)(d) required An Bord Pleanála, when making its decision in relation to an application for substitute consent to consider, inter alia, 'the significant effects on the environment, or on a European site, which have occurred or which are occurring or could reasonably be expected to occur because the development concerned was carried out'. (Emphasis added). As amended, s.177K(2)(d) requires An Bord Pleanála to consider, inter alia, 'the significant effects on the environment, or on a European site, which have occurred or which are occurring or could reasonably be expected to occur because the development concerned was or is proposed to be carried out'. (Emphasis added). The change in wording, An Taisce contends, makes clear that prospective authorisation of a development was only contemplated in the legislation, as extant, after the substitute consent in issue in these proceedings was granted.

9 The court accepts that this last contention is the correct reading of matters. However, in fairness, the argument might perhaps be made that Government simply decided to make express in the amended s.177K(2)(d) what it already considered was apparent in s.177K(2)(d), as enacted. And one does enter rather odd territory in seeking to construe the meaning of legislation by reference to legislation that did not exist when either the legislation that one is seeking to construe was enacted, or when a particular action (here the granting of the substitute consent) was done. Much more persuasive, therefore, to the court's mind, is An Taisce's correct contention that s.177O must be interpreted in the light of Ireland's obligations under European law. After all, the substitute consent procedure arose out of the State's obligation to comply with European law, in particular the problems identified by the Court of Justice in Case C-215/06. In that judgment, the Court of Justice...