An Taise- The National Trust for Ireland v McTigue Quarries Ltd & ors, [2018] IESC 54 (2018)

Docket Number:12 & 52/17
 
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THE SUPREME COURT [Appeal Nos. 12/17 & 52/17]

Clarke C.J.

McKechnie J.

MacMenamin J.

Charleton J.

Edwards J.

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

BETWEEN:

AN TAISCE/THE NATIONAL TRUST FOR IRELANDAPPLICANT

V.

McTIGUE QUARRIES LIMITED, GARY McTIGUE AND CAROLINE McTIGUERESPONDENTS

Judgment of Mr. Justice John MacMenamin dated the 7th day of November, 2018

Introduction

  1. For more than a decade, the respondents (“McTigue”) have operated a quarry located in the townlands of Cartron and Emina in rural County Galway, approximately seven kilometres south-west of the town of Tuam and 1.5 kilometres south-west of the village of Belclare.

  2. The appellants (“An Taisce”) contend the quarry is an unlawful development and contravenes s.2 of the Planning and Development Act, 2000, as amended (“the PDA 2000”). They initiated proceedings in the High Court seeking a declaration to that effect, and for an order under s.160 of the same Act restraining the respondents from continuing to operate the quarry.

    Decision of the High Court

  3. The key to this case lies in one apparently simple statutory provision. In the High Court, [2016] IEHC 620, Barrett J. concluded the quarry was unauthorised. He interpreted s.177O of the Planning and Development (Amendment) Act, 2010 (the “PD(A)A 2010”) by reference to the judgment of the Court of Justice of the European Union (the “CJEU”) in Commission v. Ireland (Case C-215/06) [2008] ECR I-04911. But, observing that he was sitting at a remove from the factual situation in the local area, he declined to grant an injunction under s.160 of the PDA 2000. Instead, he remitted the question of any further enforcement to Galway County Council as the local authority involved. The judge also delivered a second judgment with the same title, [2016] IEHC 701, which addressed An Taisce’s application pursuant to s.3(4) of the Environmental (Miscellaneous Provisions) Act, 2011, as amended, granting a protective costs order. This Court did not grant leave to appeal on this latter judgment.

    Overview of the Parties’ Positions in the Appeal

  4. An Taisce stand over the trial judge’s conclusion on the first issue, but appeal his decision on the second issue, that is, the refusal to grant a s.160 injunction. They say the judge erred in concluding that it was not incumbent upon him to grant such an order. McTigue, for their part, appeal the High Court judge’s determination that the quarry is unauthorised, although are obviously also concerned by the decision to remit the question of enforcement to the local authority. As a matter of logic, the first issue for determination in this appeal is whether the continuing operation of the quarry is lawful. If it is lawful, then no injunctive relief can be granted.

    Section 177O of the Planning and Development (Amendment) Act, 2010, PD(A)A 2010

  5. Section 177O, as set out in the PD(A)A 2010, relates to “Enforcement”, and provides:

    “(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.” (Emphasis added)

    Sub-section (2) then provides:

    (2) Where a development has not been or is not 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.”

  6. McTigue’s case is, in one sense, stark in its simplicity. They contend that s.177O should be interpreted literally; that they received such a “substitute consent”; and that this has effect in law as if it were a permission granted under s.34 of the PDA 2000, which deals with the procedures normally applicable in a range of circumstances.

    European Union Law

  7. The issues in this appeal can only be fully understood against the historical background of European Union (“EU”) law, and the legislative intention of the PD(A)A, 2010, the statute where s.177O is to be found. As this judgment seeks to explain, the section in question is not to be seen as some remote and isolated island, but rather, as attached to an extensive and revealing legislative hinterland which lends perspective.

    The EIA Directive of 1985

  8. In 1985, the European Commission promulgated European Community (“EC”) Directive 85/337 (“the Environment Impact Assessment Directive”; “the EIA Directive”). This was later amended by Directive 97/11/EEC and codified in Directive 2011/92/EU, as amended by Directive 2014/52/EU. This instrument and its successors set out rigorous conditions in the area of environmental law, especially the need to assess the environmental impact of developments identified in Annexes to the EIA Directive. Counsel for McTigue, in a focused submission, submits the EIA Directive was addressed to member states and cannot be applied “horizontally”; that is, between two private parties. He says that this, in effect, is what the trial judge did in interpreting the section. Whether the EIA Directive, in fact, has direct effect was not developed fully in argument before this Court. The point is, of course, highly important, and in itself could potentially have been determinative of the first issue. But, as will be seen, what is contained in the EIA Directive is nonetheless central to establishing the legislative intention behind s.177O.

  9. The recitals in that EIA Directive make clear that, in a development with environmental effects, such effects are to be taken into account at the earliest possible stage in the decision-making process for planning permission. Referring then to planning authorities, the Directive defined the concept of “development consent” as being “the decision of the competent authority or authorities which entitles the developer to proceed with the project”. Article 2(1) requires that an environmental impact assessment (“EIA”) should take place before consent is given. As a consequence, the twin concepts of “development consent” and an EIA are closely and inextricably linked. While not directly necessary for the determination of this case, other decisions of the CJEU must now be briefly discussed. In light of the fact that certain of these decisions had not been referred to in argument at the original hearing, the Court permitted the parties to address questions arising from these decisions in a resumed hearing some months later.

    Other CJEU Case Law

  10. Consideration of these other background case law must start with R (Delena Wells) v. Secretary of State for Transport, Local Government and the Regions (Case C-201/02) [2004] ECR I-00723 which has been cited to this Court, and R (Diane Barker) v. London Borough of Bromley (Case C-290/03) [2006] ECR I-03949. The CJEU laid emphasis on the point that development consent must be received prior to a development (Wells, at paras. 42 and 43). In Barker, the Court explained that the term “development consent” itself remained a “Community concept”, and therefore its meaning fell to be determined exclusively within what was then EC, and is now EU, law (Barker, at para. 40). Thus, classification of a planning decision as a “development consent” within the meaning of Art.2 of the EIA Directive must, therefore, be carried out pursuant to national law, but in a manner consistent with what is now EU. (Barker, at para. 41). The CJEU explained that, whether the development referred to one or more stages, it was a matter for the national court to identify whether each stage in a consent procedure, considered as a whole, constituted a “development consent” for the purposes of the Directive. (Barker, at para. 46). (See, generally, Áine Ryall, Effective Judicial Protection and the Environmental Impact Assessment Directive in Ireland (Hart Publishing 2009) at pp. 133-135, a text which sets out this background with admirable clarity).

    Commission v. Ireland

    (Case C-215/06)

  11. The important judgment of the CJEU in Commission v. Ireland (op.cit., at para. 2) is even more directly on point. The factual background is well known. A decision was made to develop an expansive windfarm on a bog at Derrybrien in County Galway. Due to considerable development and foundation work, the bog itself became unstable, causing a huge landslide. It transpired that the windfarm had been developed without an EIA ever having been carried out. Instead, Galway County Council, the planning authority, had granted what was then defined under the PDA 2000, in its unamended form, as a “retention permission”. The European Commission complained to the CJEU that Ireland had inadequately transposed Arts. 2, 4 and 5-10 of the EIA Directive, both in its original form and as amended by Directive 97/11/EC. The Commission submitted that Irish law allowed a developer to seek “retention permission” for unauthorised development after that development had begun, and thereby defeated the preventative objectives of the EIA Directive.

  12. In its subsequent and far-reaching judgment delivered on the 3rd July, 2008, the CJEU emphasised the meaning and effect of Art. 2(1) of the EIA Directive. This stipulated that Member States were to adopt “all measures” necessary to ensure that before planning consent is given, projects likely to have significant effects on the environment, by their nature or location, were made subject to an EIA with regard to those effects. The Court did make reference to Art. 2(3) of the Directive which provides that Member States might “in exceptional cases” exempt a “specific project” in whole or in part from the provisions laid down in the Directive. This wording is significant, and will be referred to later. The CJEU observed that the wording of Art. 2(3) was entirely unambiguous and was, therefore, to be understood as meaning...

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