Flood & Sons (manufacturing) Ltd v an Bord Pleanala

• Jurisdiction: Ireland
• Judge: Ms. Justice Ní Raifeartaigh
• Judgment Date: 20 April 2020
• Neutral Citation: [2020] IEHC 195
• Docket Number: RECORD NO. 2013/647 JR
• Court: High Court
• Date: 20 April 2020

BETWEEN

JJ FLOOD & SONS (MANUFACTURING) LTD

AND

DAVID FLOOD

APPLICANTS

AND

AN BORD PLEANÁLA, IRELAND

AND

THE ATTORNEY GENERAL, MEATH COUNTY COUNCIL

RESPONDENTS

[2020] IEHC 195

J.

RECORD NO. 2013/647 JR

THE HIGH COURT

Constitutionality – Planning and Development Act 2000 s. 261 – Substitute consent – Applicants seeking orders of certiorari quashing the decisions of the respondents made pursuant to s. 261A of the Planning and Development Act 2000 – Whether s. 261A of the Planning and Development Act 2000 is unconstitutional

Facts: The first applicant, JJ Flood & Sons (Manufacturing) Ltd, was a limited company and operated a quarry at Murrens, Oldcastle, County Meath. The second applicant, Mr Flood, was the director of that company. The applicants maintained that the quarry was beyond the reach of the EU Environmental Impact Assessment Directive and the Habitats Directive (the Directives) because it had remained within the parameters of a pre-1964 user. In 2005, the quarry was registered under s. 261 of the Planning and Development Act 2000 (PDA 2000) and the fourth respondent, Meath County Council (the Council), imposed a number of conditions as to its future operations pursuant to s. 261(6) of the PDA 2000. In 2012, in accordance with its obligation under s. 261A of the amended legislation, the Council conducted a review and directed the quarry to apply for substitute consent. The applicants maintained that this direction was invalid for a number reasons, the most fundamental of which was the applicants’ claim that a quarry which stays within its pre-1964 user is not subject to the Directives because it does not require development consent; this being, it maintained, a condition of the applicability of the Directives. The first respondent, An Bord Pleanála (the Board), upheld the Council’s decision. The applicants maintained that the Board’s decision was also invalid. They also maintained that s. 261A of the PDA 2000 was unconstitutional in failing to provide for adequate procedures in a process which, they said, wrongly and unfairly removed rights which were “vested” in it pre-1964. The applicants sought the following reliefs: (i) an order of certiorari quashing the decision of the Board, dated 27th June, 2013, wherein the Board purported to make a determination pursuant to s. 261A, confirming the earlier determination of the Council of 20th July, 2012; (ii) an order of certiorari quashing the decision of the Council made pursuant to s. 261A on 20th July, 2012; (iii) a declaration that s. 261A is unconstitutional.

Held by Ní Raifeartaigh J that she rejected the submission that a quarry which commenced operations prior to 1964, even one which stays within its pre-1964 user, is automatically by virtue of that user rendered immune from the Directives. She rejected the submission that the Council was not entitled to issue a direction to the applicants to apply for substitute consent in circumstances where it had previously imposed conditions which envisaged further quarrying for 20 years following the quarry’s registration under s. 261. She also found that the legislation was not unconstitutional for the reasons put forward by the applicants.

Ní Raifeartaigh J held that she would refuse the reliefs sought.

Reliefs refused.

JUDGMENT of Ms. Justice Ní Raifeartaigh delivered on the 20th day of April, 2020

Nature of the Case

1 This is another case in a long line of cases concerning Irish planning law as it applies to quarries and as impacted upon by Ireland’s obligations of EU membership. The first named applicant is a limited company and operates a quarry at Murrens, Oldcastle, County Meath and the second named applicant is the director of that company. The applicants maintain that the quarry in question is beyond the reach of the EU Environmental Impact Assessment Directive and the Habitats Directive (“the Directives”) because it has remained within the parameters of a pre-1964 user.

2 In 2005, this quarry was registered under s.261 of the Planning and Development Act, 2000 (“PDA 2000”) and Meath County Council (“the Council”) imposed a number of conditions as to its future operations pursuant to s.261(6) of the PDA 2000. In 2012, in accordance with its obligation under s.261A of the amended legislation, the Council conducted a review and directed the quarry to apply for substitute consent. The applicants maintain that this direction was invalid for the reasons set out below, the most fundamental of which is the applicants’ claim that a quarry which stays within its pre-1964 user is not subject to the Directives because it does not require development consent; this being, it maintains, a condition of the applicability of the Directives. An Bord Pleanála (“the Board”) upheld the Council’s decision. The applicants maintain that the Board’s decision was also invalid. They also maintain that s.261A of the PDA 2000 is unconstitutional in failing to provide for adequate procedures in a process which, they say, wrongly and unfairly removes rights which were “vested” in it pre-1964.

3 For the reasons set out in this judgment, I reject the submission that a quarry which commenced operations prior to 1964, even one which stays within its pre-1964 user, is automatically by virtue of that user rendered immune from the Directives. This in turn affects some of the remaining questions raised by the applicants. I reject the submission that the Council was not entitled to issue a direction to the applicants to apply for substitute consent in circumstances where it had previously imposed conditions which envisaged further quarrying for 20 years following the quarry’s registration under s.261. I also find that the legislation is not unconstitutional for the reasons put forward by the applicants. I therefore propose to refuse the reliefs sought.

The Reliefs Sought

4 The applicants seek the following reliefs:

i) An order of certiorari quashing the decision of An Bord Pleanála, dated 27th June, 2013, wherein the Board purported to make a determination pursuant to s.261A of the PDA 2000, as amended, confirming the earlier determination of Meath County Council of 20th July, 2012.

ii) An order of certiorari quashing the decision of Meath County Council made pursuant to s. 261A of the PDA, 2000 on 20th July, 2012.

iii) A declaration that s.261A of the PDA 2000, as amended, is unconstitutional.

5 Although the applicants challenge both the Council and the Board decisions, it is the decision of the Board which falls primarily for scrutiny in these proceedings. In McGrath Limestone Works Ltd v. An Bord Pleanála & Ors [2014] IEHC 382, Charleton J. (at paragraphs 9.2 and 9.3) dealt with the issue of when time to seek judicial review begins to run. He considered that the process was not complete until the Board fulfilled its function of reviewing the planning authority’s decision. He held that time did not run until the Board’s decision because it was the Board’s decision, and not “any intermediate step”, with which the applicant had an issue. It follows that the final decision in the process, that of the Board on review, is the primary decision with which the Court should be concerned in this judicial review.

The relevant Directives and their interpretations by the CJEU

6 In 1990, Council Directive 85/337/EEC of 27th June, 1985 on the assessment of the effects of certain public and private projects on the environment required the mandatory assessment of projects set out in Annex I of the Directive and a discretionary assessment of projects set out in Annex II, where Member States considered that their characteristics so required. Quarrying is not listed in Annex I of the Directive but it is cited in section 2(c) of Annex II (“[e]xtraction of minerals”). This Directive was transposed into Irish Law in the European Communities (Environmental Impact Assessment) Regulations, 1989 (“EIA Regulations”) which came into operation on 19th December, 1989 and the Local Government (Planning and Development) Regulations, 1990 which came into operation on 1st February, 1990.

7 The EIA Regulations required that an environmental impact assessment (“EIA”) be carried out in respect of all projects specified in the First Schedule, including those specified under “Extractive Industry” in section 2(d) of Part II: “[e]xtraction of stone, gravel, sand or clay, where the area involved would be greater than 5 hectares”.

8 A subsequent Directive, Council Directive 97/11/EC of 3rd March, 1997, amended Annex I of Directive 85/337/EEC to require mandatory EIAs for quarries in excess of 25 hectares. It also introduced the requirement that an EIA be carried out in respect of changes or extensions to projects, already authorised or being executed, which may have significant effects on the environment. This Directive was transposed into Irish Law in the European Communities (Environmental Impact Assessment) (Amendment) Regulations, 1999 and required an EIA for the extension of a quarry which brought the total quarry in excess of 5 hectares and represented an increase of over 25% of the existing quarry, provided that the extension itself exceeded 2.5 hectares.

9 Council Directive 92/43/EEC of 21st May, 1992 on the conservation of natural habitats and of wild fauna and flora (“the Habitats Directive”) provides at Article 6(3) that a competent authority must carry out an appropriate assessment of any plan or project which is likely to have a significant effect on a Natura 2000 site, prior to any decision being made to allow the project to proceed. Natura 2000 sites in Ireland comprise Special Areas of Conservation (“SACs”) and Special Protection Areas (“SPAs”). SACs are selected for the conservation and protection of habitats listed in Annex I and species (other than birds) listed in Annex II of the Habitats Directive and their habitats. SPAs are sites which have been selected for the conservation and...