An Taisce v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 17 May 2018
• Neutral Citation: [2018] IEHC 315
• Docket Number: 2014 No. 342JR
• Court: High Court
• Date: 17 May 2018

[2018] IEHC 315

THE HIGH COURT

Barrett J.

2014 No. 342JR

Between:

AN TAISCE

Applicant

– and –

AN BORD PLEANÁLA, IRELAND

and

the ATTORNEY GENERAL

Respondents

– and –

J MCQUAID QUARRIES LIMITED, MONAGHAN COUNTY COUNCIL,

PETER SWEETMAN

Notice Parties

Judicial review – Substitute consent – European Union law – Applicant seeking an order of certiorari by way of judicial review quashing the decision of the respondent – Whether substitute consent had been granted in accordance with European Union law

Facts: The applicant, An Taisce, applied to the High court seeking: (a) an order of certiorari by way of application for judicial review quashing the decision of the first respondent, An Bord Pleanála, of 25th April, 2014, granting a substitute consent to the first notice party, J McQuaid Quarries Ltd, in respect of the quarry at Lemgare; (b) if necessary, a declaration that Part XA of the Planning and Development Act 2000 is incompatible with Ireland’s obligations under European Union law, in particular the EIA Directive; (c) if necessary, a reference to the CJEU as to whether the substitute consent had been granted in accordance with European Union law; and (d) certain ancillary reliefs.

Held by Barrett J that the proceedings, which ostensibly challenged a decision of 25th April 2014 but in truth sought to assail a decision of 28th May 2012, had been commenced out of time and represented an impermissible collateral attack on the earlier decision. Barrett J considered the substance of An Taisce’s complaints and found no merit in them. Barrett J did not consider that the court was presented with one or more questions of European Union law in respect of which a decision of the CJEU was necessary to enable the court to give judgment.

Barrett J held that he would decline to grant all the reliefs sought.

Reliefs refused.

JUDGMENT of Mr Justice Max Barrett delivered on 17th May, 2018.

1 The first-named notice party owns a quarry at Lemgare, Co Monaghan, that on 25th April, 2014, was granted a substitute consent by An Bord Pleanála pursuant to s.177C(2)(a) and D(1)(a) of the Planning and Development Act 2000, which provide as follows:

‘177C. –

…(2) A development in relation to which an applicant may make an application referred to in subsection (1) is a development which has been carried out where an environmental impact assessment, a determination as to whether an environmental impact assessment is required, or an appropriate assessment, was or is required, and in respect of which

(a) the applicant considers that a permission granted for the development by a planning authority or the Board may be in breach of law, invalid or otherwise defective in a material respect, whether pursuant to a final judgment of a court of competent jurisdiction in the State or the Court of Justice of the European Union, or otherwise by reason of -

(i) any matter contained in or omitted from the application for permission including omission of an environmental impact statement or a Natura impact statement or both of those statements, as the case may be, or inadequacy of an environmental impact statement or a Natura impact statement or both of those statements, as the case may be, or

(ii) any error of fact or law or a procedural error,

or [emphasis added]

(b) the applicant is of the opinion that exceptional circumstances exist such that it may be appropriate to permit the regularisation of the development by permitting an application for substitute consent.

…

177D. – (1) The Board shall only grant leave to apply for substitute consent in respect of an application under section 177C where it is satisfied that an environmental impact assessment, a determination as to whether an environmental impact assessment is required, or an appropriate assessment, was or is required in respect of the development concerned and where it is further satisfied –

(a) that a permission granted for development by a planning authority or the Board is in breach of law, invalid or otherwise defective in a material respect whether by reason of a final judgment of a court of competent jurisdiction in the State or the Court of Justice of the European Union, or otherwise, by reason of -

(i) any matter contained in or omitted from the application for the permission including omission of an environmental impact statement or a Natura impact statement or both of those statements as the case may be, or inadequacy of an environmental impact statement or a Natura impact statement or both of those statements, as the case may be, or

(ii) any error of fact or law or procedural error,

or [emphasis added]

(b) that exceptional circumstances exist such that the Board considers it appropriate to permit the opportunity for regularisation of the development by permitting an application for substitute consent.’

2 Previous to the granting of the said substitute consent, the quarry had been registered pursuant to s.261 of the Act of 2000. Section 261(7) of that Act provided as follows:

‘(a) Where the continued operation of a quarry –

(i) (I) the extracted area of which is greater than 5 hectares, or

(II) that is situated on a European site or any other area prescribed for the purpose of section (10)(2)(c), or land to which an order under section 15, 16 or 17 of the Wildlife Act, 1976, applies,

and

(ii) that commenced operation before 1 October 1964,

would be likely to have significant effects on the environment (having regard to any selection criteria prescribed by the Minister under section 176(2)(e)), a planning authority shall not impose conditions on the operation of a quarry under subsection (6), but shall, not later than one year after the date of the registration of the quarry, require, by notice in writing, the owner or operator of the quarry to apply for planning permission and to submit an environmental impact statement to the planning authority not later than 6 months from the date of service of the notice, or such other period as may be agreed with the planning authority.

…

(c) A planning authority, or the Board on appeal, shall, in considering an application for planning permission made pursuant to a requirement under paragraph (a), have regard to the existing use of the land as a quarry.’

3 Pursuant to s.261(7) of the Act of 2000, Monaghan County Council directed that an application for planning permission, together with an environmental impact statement, be submitted to it. Thereafter, on 2nd March, 2004, an application for planning permission was made by the first-named notice party. Following on this application, Monaghan County Council granted planning permission for the quarry.

4 An Taisce appealed this decision to An Bord Pleanála. In its appeal, An Taisce contended that the application for permission was a retention application in respect of a development that required an environmental impact assessment and, accordingly, that permission could not be granted, having regard to the EIA Directive and the decision of the Court of Justice in Case C-215/06 Commission v. Ireland (of which more anon). Notwithstanding the grounds set out in the appeal, on 20th July, 2009, An Bord Pleanála granted permission for the quarry. An Taisce then commenced judicial review proceedings challenging the lawfulness of the decision of An Bord Pleanála.

5 On 25th November, 2010, Charleton J. made an order of certiorari quashing the decision of An Bord Pleanála. In his decision, Charleton J. held, inter alia, that An Bord Pleanála was required to consider whether or not the development that was the subject of the application was unauthorised development. As An Bord Pleanála had not considered same, its decision was quashed.

6 Subsequent to the said decision of Charleton J., the first-named notice party applied to An Bord Pleanála for leave to apply for substituted consent pursuant to s.177C of the Act of 2000. An Bord Pleanála granted the said leave. It is as well to take a detour at this point and consider what was afoot in the making of this application under s.177C. That provision came about as a result of the previously mentioned decision of the Court of Justice in Commission v. Ireland. That was a case in which the CJEU found Ireland to be in breach of European Union law because, prior to the Planning and Development (Amendment) Act 2010, there was no restriction under Irish law as to the circumstances in which retention planning permission could be sought, thus effectively offering a means to circumvent the requirements of the EIA Directive, the CJEU observing, inter alia, as follows:

‘54 As the Irish legislation stands, it is undisputed that environmental impact assessments and planning permissions must, as a general rule, be respectively carried out and obtained, when required, prior to the execution of works. Failure to comply with those obligations constitutes under Irish law a contravention of the planning rules.

55 However, it is also undisputed that the Irish legislation establishes retention permission and equates its effects to those of the ordinary planning permission which precedes the carrying out of works and development. The former can be granted even though the project to which it relates and for which an environmental impact assessment is required pursuant to Articles 2 and 4 of Directive 85/337 as amended has been executed.

56 In addition, the grant of such a retention permission, use of which Ireland recognises to be common in planning matters lacking any exceptional circumstances, has the result, under Irish law, that the obligations imposed by Directive 85/337 as amended are considered to have in fact been satisfied.

57 While Community law cannot preclude the applicable national rules from allowing, in certain cases, the regularisation of operations or measures which are unlawful in the light of Community law, such a possibility should be...