Donnal McMonagail agus a mhic teoranta trading as McMonagle Stone v Ireland and Others; Donnal McMonagail agus a mhic teoranta trading as McMonagle Stone v an Bord Pleanala and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Cian Ferriter
• Judgment Date: 28 April 2023
• Neutral Citation: [2023] IEHC 223
• Docket Number: RECORD NO: 2013/966JR
• Court: High Court

Between

Donnal McMonagail Agus a Mhic Teoranta Trading as McMonagle Stone

Applicant

and

Ireland and The Attorney General, Donegal County Council and An Bord Pleanála

Respondents

In the Matter of Section 50 The Planning & Development Act 2000 (As Amended)

Between

Donal McMonagail Agus a Mhic Teoranta Trading as McMonagle Stone

Applicant

and

An Bord Pleanála, Ireland and The Attorney General

Respondents

[2023] IEHC 223

RECORD NO: 2013/966JR

RECORD NO. 2020/497 J.R.

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Mr Justice Cian Ferriter delivered this 28 ^th day of April 2023

Introduction

1 This judgment sets out my decision in respect of two sets of judicial review proceedings brought by the same applicant, being Donal McMonagail agus a Mhic Teoranta t/a McMonagle Stone v. Ireland, The Attorney General, Donegal County Council and An Bord Pleanála (Record Number 2013/966 JR)(“the 2013 proceedings”) and Donal McMonagail agus a Mhic Teoranta t/a McMonagle Stone v. An Bord Pleanála, Ireland and The Attorney General (Record Number 2020/497 JR) (“the 2020 proceedings”). Both cases concern challenges by way of judicial review to decisions bearing upon the planning status of a quarry at Largybrack, Glencolmcille, County Donegal, owned and operated by the applicant (“ the quarry”). Both proceedings also involve, as a fall back, challenges to the constitutionality of various provisions of the Planning and Development Act 2000, as amended (“ the 2000 Act”).

2 The 2013 proceedings concern a challenge by the applicant to a determination and decision of Donegal County Council (“ the Council”) made on 22 August 2012 under s.261A(2) and (4)(a) of the 2000 Act that the quarry required an Environmental Impact Assessment (“ EIA”) and an Appropriate Assessment (“ AA”), that the quarry had commenced operation on or after 1 October 1964 and that no permission was granted in respect of the quarry under Part III of the 2000 Act or Part IV of the Local Government and Planning and Development Act 1963 (“the 1963 Act”). The Council's decision also notified that the Council intended to issue an enforcement notice in relation to the quarry under s.154 of the 2000 Act requiring the cessation of the operation of the quarry.

3 The applicant applied for a review of the Council's determination and decision to An Bord Pleanála (“ the Board”) pursuant to s.261A(6) of the 2000 Act. The Board gave its decision on the review application on 25 October 2013 (“ the Board's 2013 decision”), confirming the Council's decision. This paved the way for enforcement action by the Council in respect of the quarry. The applicant also challenges the Board's 2013 decision in the 2013 proceedings.

4 On 10 October 2018, the applicant made an application seeking leave to apply for substitute consent in respect of the quarry (substitute consent being a form of retention permission). This is an application made directly to the Board pursuant to s.177C of the 2000 Act. Leave to apply for substitute consent to regularise the development was sought under the “exceptional circumstances” criteria set out in s.177D of the 2000 Act. On 16 April 2020, the Board gave its decision refusing leave to apply for substitute consent under s.177D (“ the substitute consent decision”). The 2020 proceedings concern a challenge to the Board's substitute consent decision.

5 The applicant's case in each set of proceedings is that the impugned decisions were arrived at in breach of fair procedures. In the 2013 proceedings, the applicant's core case is that the Board (and the Council) acted in breach of fair procedures in determining that there had been no pre-1964 use of the quarry; in particular, it was contended that the Board (and the Council) had determined there was no quarry on the site pre-1964 on the basis of a single aerial photograph from 1995, without putting that photograph to the applicant or otherwise giving the applicant an opportunity to address the intended finding as to the absence of quarry use pre-1964.

6 The fair procedures case in relation to the 2020 proceedings is that the Board arrived at its adverse determination on the application for leave for substitute consent by rejecting the applicant's evidence as to pre-1964 user without giving the applicant an opportunity to properly make submissions on that issue and that, further, the Board determined that there had been an enlargement of the scope of quarry activity between 2012 and 2019 on the basis of aerial photography not put to the applicant.

7 The Board contends that very similar arguments were made and rejected recently by the High Court (Hyland J.) in the cases of Fursey Maguire & ors v. An Bord Pleanála and Phoenix Rock Enterprises v. An Bord Pleanála [2022] IEHC 707 which were the subject of a single judgment by Hyland J. handed down on 12 December 2022 last; for ease I will refer to that judgment as “ Fursey Maguire”. The applicant maintains that Fursey Maguire is distinguishable and that it can make out its case in each of its two proceedings on their own facts.

8 In order to put the issues in the proceedings in their appropriate context, it is necessary to briefly explain particular aspects of the planning regime in place for quarries as set out in the 2000 Act as amended.

The planning regime for quarries

9 Section 261 of the 2000 Act (“s.261”) was enacted to regularise the planning position of quarries, in circumstances where many quarries had operated in a planning “ grey area”, particularly where quarrying activity may have taken place on a quarry site pre-1964 and was not the subject of a planning permission since then. Section 261 introduced a new system of registration of all quarries. This system was intended to give a snapshot of the current use of land for quarrying and, where necessary, to permit the introduction of new or modified controls on the operation of certain quarries. Section 261 commenced on 28 April 2004.

10 As part of the registration process, an owner or operator was required not later than one year from the coming into operation of the section (i.e. by April 2005), to provide information on the operation of the quarry to the planning authority in the functional area in which the quarry was situated. On receipt of such information, the planning authority was required to enter it into a register. The information required included the area of the quarry, with the extracted area delineated on a map, and data from quarrying operations on the land. Section 261(6)(a)(i) provided for the imposition of conditions on quarries so registered, provided the quarry had commenced operation before 1 October 1964. (In broad terms, quarries which had commenced prior to 1 October 1964 would not have required permission under the 1963 Act.) Alternatively, under s.261(6)(a)(ii), where a quarry had planning permission, the local authority could restate, modify, or add to conditions imposed on the operation of that quarry.

11 As noted by Hyland J. in Fursey Maguire (at para. 25), following the enactment of s.261, the legal landscape changed considerably in relation to quarries. As she points out, the evolution of the obligations on quarry operators has been set out in some detail in the decisions in J.J. Flood v. An Bord Pleanála [2020] IEHC 195 (“ J.J. Flood”) and McGrath Limestone v. An Bord Pleanála [2014] IEHC 382 (“ McGrath Limestone”) and there is no need to repeat that detail here.

12 A further very material development in the legal regime applicable to quarries happened with the decision of the CJEU in Case C-215/06 Commission v. Ireland (EU:C:2008:380) [2008] ECR I-4911 (“ Commission v. Ireland”). Effectively the CJEU found in Commission v. Ireland that retention permission was too readily available in Ireland for developments requiring an EIA under the EIA Directive and that this did not properly give effect to Ireland's obligations under the EIA Directive as it led to potential circumvention of the EIA regime.

13 The CJEU's decision in Commission v. Ireland necessitated the removal of the facility to apply for retention permission for developments requiring an EIA under the EIA Directive in all but exceptional circumstances. The relevant legislative changes were introduced by the Planning and Development (Amendment) Act 2010 (the “2010 Act”) and the Environment (Miscellaneous Provisions) Act 2011 (the “2011 Act”). Amongst the key amendments to the 2000 Act effected by the 2010 Act and 2011 Act were the following:

• (i) prohibition on retention permission in certain circumstances (s.34(12));

• (ii) provision for a new species of permission described as “substitute consent” (Part XA); and

• (iii) an obligation imposed on planning authorities to examine and make decisions on quarries within their area (s.261A).

14 The decisions impugned in the 2013 proceedings were made under s.261A.

15 The material parts of s.261A for present purposes are as follows. Under s.261A(1), each planning authority was obliged within four weeks of the coming into operation of the section to publish a notice stating its intention to examine every quarry in its administrative area to determine whether an EIA or an EIA screening or an AA was required. Importantly, under s. 261A(2)(a), each planning authority was required not later than nine months after coming into operation of s.261A to make a determination in relation to every quarry within its administrative area as to whether development carried out after 1 February 1990 would have required an EIA (or EIA screening) and whether development after 26 February 1997 would have required an AA and whether same were in fact carried out. As s.261 commenced in November 2012, the relevant determinations were required to be made by July 2012.

16 Assuming the local authority in question concluded that an EIA/EIA screening/AA was required, it was then required to look at the planning history of...