An Taisce v an Bord Pleanala, an Taisce v an Bord Pleanala, Sweetman v an Bord Pleanala

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 01 July 2020
• Neutral Citation: [2020] IESC 39
• Date: 01 July 2020
• Court: Supreme Court
• Docket Number: [S.C. Nos. 9, 42 & 43 of 2019],Supreme Court Record No: 9/19 Supreme Court Record No: 42/19 High Court Record No: 2016/868 JR Supreme Court Record No: 43/19 High Court Record No: 2016/542 JR

BETWEEN /

AN TAISCE

APPLICANTS/APPELLANTS

AND

AN BORD PLEANÁLA,

J. MCQUAID QUARRIES LIMITED,

IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

AND

SHARON BROWNE

NOTICE PARTY

BETWEEN /

PETER SWEETMAN

APPLICANT/APPELLANT

[2020] IESC 39

Clarke C.J.

O'Donnell J.

McKechnie J.

Dunne J.

Baker J.

Supreme Court Record No: 9/19

High Court Record Number: 2014/342 JR

Supreme Court Record No: 42/19

High Court Record No: 2016/868 JR

Supreme Court Record No: 43/19

High Court Record No: 2016/542 JR

THE SUPREME COURT

Substitute consent – Exceptionality test – Public participation – Appellants seeking declaratory relief – Whether the relevant provisions of the Planning & Development Act 2000, dealing with substitute consent, are a sufficient implementation of the EIA Directive 85/337

Facts: These appeals were joined and heard together before the Supreme Court due to the crossover in subject matter. All three dealt with aspects of the “substitute consent” procedure contained in the Planning & Development Act 2000, as amended, and its compatibility with the EIA Directive 85/337, also as amended. The first appeal (S.C. Record No. 9/19) was referred to as the “McQuaid case” given that the quarry under discussion in that appeal, which was situated in Lemgare, Co. Monaghan, was owned by J. McQuaid Quarries Ltd (McQuaid Quarries) and the second and third appeals (S.C. Record No. 42/19 and 43/19) were referred to as the “Ballysax cases”, as both were virtually identical as to issue arising and involved the same quarry in Ballysax, The Curragh, Co. Kildare. In the first appeal, judgment was delivered in the High Court by Barrett J on 17th May, 2018, and in relation to the latter, which were heard together, a composite judgment was delivered by Eagar J on 19th October, 2017. All three were co-joined when the Supreme Court granted leave to appeal in each case. Five issues arose: firstly, whether the relevant provisions of 2000 Act, dealing with substitute consent, are a sufficient implementation of the Directive having regard to the various decisions of the Court of Justice, commencing with Commission v Ireland (Case C-215/06), or more accurately, whether the gateway to an application for substitute consent under s. 177C(2)(a) of the 2000 Act is a sufficient compliance with the exceptionality test as laid down repeatedly by that Court, particularly as it was claimed that once leave has been given, that test forms no part of the decision on the substantive application itself, made under s. 177K of the Act (Issue One); second, the meaning and scope of the public right to participate under the Directive, in particular the extent of that right on a leave application made under either s. 177C(2)(a) or C(2)(b), in which context it must be asked whether or not such a right is satisfied by the provisions of s. 177H, which afford to all members of the public a full right to make submissions or observations at the substantive application stage (Issue Two); third, whether the challenge by An Taisce to the substitute consent decision in the McQuaid case can be correctly considered as a collateral attack on the leave decision given on 28th May, 2012 (Issue Three); fourth, the right or obligation, if any, of An Bord Pleanála, to disapply national law having regard to the decision of the European Court of Justice in the Workplace Relations Commission case (Case C-378/17) (Issue Four); and finally, the question of standing (Issue Five).

Held by McKechnie J that: (i) on Issue One, s. 177C(2)(a) and its corresponding provision, s. 177D(1)(a) are inconsistent with the EIA Directive as interpreted by the Court of Justice, in that they fail to provide adequately for the exceptionality test as demanded by that court; (ii) on Issue Two, given the structure of s. 177, the failure to make provision for public participation at the leave application stage for substitute consent is inconsistent with the public participation rights conferred by and outlined in the EIA Directive; (iii) by reason of his view on the above issues, it was not necessary to conclusively express an opinion on Issues Three and Four; and (iv) as Issue Five, concerning standing, was not seriously pursued, it was not necessary to express any view thereon.

McKechnie J held that, on Issues One and Two, he would grant appropriate declarations to reflect the conclusions so reached.

Declarations granted.

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 1st day of July, 2020

Introduction

1 The present appeals were joined and heard together before this Court due to the crossover in subject matter. All three deal with aspects of the “substitute consent” procedure contained in the Planning & Development Act 2000, as amended, and its compatibility with the EIA Directive 85/337, also as amended. For ease of reference, I will refer to the first appeal (S.C. Record No. 9/19) as the “McQuaid case”, given that the quarry under discussion in that appeal, which is situated in Lemgare, Co. Monaghan, is owned by J. McQuaid Quarries Limited (“McQuaid Quarries”) and I will refer to the second and third appeals (S.C. Record No. 42/19 and 43/19) as the “Ballysax cases”, as both are virtually identical as to issue arising and involve the same quarry in Ballysax, The Curragh, Co. Kildare. In the first mentioned appeal, judgment was delivered in the High Court by Barrett J. on the 17th day of May, 2018, and in relation to the latter, which were heard together, a composite judgment was delivered by Eagar J. on the 19th day of October, 2017. All three were co-joined when this Court granted leave to appeal in each case: accordingly, it is appropriate to issue a single judgment in respect of the matters arising.

Planning Control and Quarries:

2 Despite the impressive number of statutes which were repealed by the Second Schedule, there was very little in terms of control, regulation or enforcement of town and county planning prior to the enactment of the Local Government (Planning and Development) Act 1963 (“the 1963 Act”). The most recent prior to that time, namely The Town and Regional Planning Act 1934, as amended in 1939, was of very limited utility. Under the 1963 Act, there was a general obligation to obtain planning permission for the carrying out of any development which was not exempt or commenced before the appointed date: a similar obligation was imposed in respect of the retention of a structure which was or was deemed to be unauthorised as of that date (s. 24(1)). “Development” was defined as “…the carrying out of any works on, in or under land or the making of any material change in the use of any structure or other land” (s. 3(1)). “Unauthorised use” was also defined as “[a] use commenced on or after the appointed date, the change in use being a material change and being development other than…” (s. 2). A person was enjoined not to carry out such a development save in accordance with the permission granted: to do otherwise, constituted a criminal offence, (s. 24(3)).

3 Notwithstanding the mandatory nature of this requirement and the sanction for breach, the Oireachtas saw fit to include a provision whereby a person, who carried out a development either by the carrying out of works or the making of a material change in use, without obtaining the required permission, could nonetheless apply for the retention of such development or for a continuation of such use, as the case may be. This was generally known as a “retention permission” (ss. 27 and 28 of the 1963 Act).

4 In that Act, provision was also made for the overall control of development and the means by which, inter alia, a planning authority could enforce that control. The appointed date for the purpose of the enactment was the 1st October, 1964, and so in general terms its measures had no application to events preceding that date. The Oireachtas was concerned that if it did so, constitutional considerations might impair substantial parts of the Act. (Waterford County Council v. John A. Wood [1998] IESC 32, [1999] 1 I.R. 556, McGrath Limestone v. An Bord Pleanála [2014] IEHC 382 (Unreported, High Court, Charleton J., 30th July, 2014)). In reality this meant that in respect of established works or uses existing at that time, there was no obligation to apply for a permission and the enforcement or control regime could not be activated in respect of such works or uses: this unless there was after that date further development or the making of a material change in use, which included an intensification of that use. For the reasons next mentioned this regime, in particular that applying to the “use” provisions, posed very considerable problems for planning authorities in respect of quarrying and quarries.

5 The 1963 Act was subsequently amended on at least nine occasions, sometimes substantively, in the decades which followed. As a result, by the year 2000 the body of legislation dealing with planning and development was disparate, unwieldly and extremely difficult to locate or follow. The Oireachtas decided in that year to coordinate in one piece of legislation the entire planning code: this became the Planning and Development Act 2000. All previous Acts, save for the very occasional section, were repealed by that measure. During the time which followed, the 2000 Act has also been amended, with the Planning & Development ( Amendment) Act 2010, being the only one of concern to these cases. Accordingly, further amendments which were later made have been disregarded for the purposes of this judgment.

6 It has been the case for many years past that quarries, many of which predated 1964, posed considerable difficulties in the planning area. The nature of quarrying is such that, when active, extraction is constantly taking place and invariably expansion and further development will be required overtime, in order to continue operating at a functioning level. That level,...