Hayes v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Ms. Justice Ní Raifeartaigh
• Judgment Date: 17 May 2018
• Neutral Citation: [2018] IEHC 338
• Docket Number: [2016 No. 499 JR]
• Court: High Court
• Date: 17 May 2018

[2018] IEHC 338

THE HIGH COURT

JUDICIAL REVIEW

Ní Raifeartaigh J.

[2016 No. 499 JR]

BETWEEN

ALICE HAYES, PATRICK HAYES

AND

PETER SWEETMAN

Applicants

-and-

AN BORD PLEANÁLA

Respondent

-and-

MURRAY BROTHERS TARMACADAM LIMITED

Notice Party

-and-

CORK COUNTY COUNCIL

Notice Party

-and-

AN TAISCE

Notice Party

Judicial review - Planning permission - Order of certiorari - Ultra vires - Environmental impact assessment - Unauthorised development - Quarries - Environmental Impact Assessment Directive - Planning and Development Act 2000

In these proceedings, the applicants sought an order of certiorari of the decision of the first named respondent which upheld a decision of the second notice party to grant planning permission for a quarry owned and operated by the first notice party and further. It was argued that this decision was ultra vires the first respondent's powers. The applicants also sought a declaration that the second and third respondents had failed to give effect to the decision in Case C-215/06 Commission of the European Communities v Ireland [2008] ECR I-4911 and the substantive requirements of the Environmental Impact Assessment Directive by permitting a developer who had engaged in unauthorised development to comply with an enforcement notice under s. 154 of the Planning and Development Act 2000 and upon compliance submit an application for planning permission pursuant to s. 34 of the Planning and Development Act 2000 rather than avail of the substitute consent procedure in Part. XA of and ss. 261-261A of the same Act.

Held by Ní Raifeartaigh J. that the decision of the first named respondent would be quashed. The first notice party had not been required to submit a remedial environmental impact statement and therefore the first named respondent did not factor the impact of past development on the environment into its decision-making process. Such a situation did not comply with EU law, in particular the decisions in Commune di Corrridonia v Provincia di Macerate (Joined Cases C-196/16 and C-197/16) [2016] and Commission v. Ireland Case C-215/06 [2008]

Judgment of Ms. Justice Ní Raifeartaigh delivered on the 17th day of May, 2018

Nature of the Case

1 This is a case which concerns the procedures under Irish planning legislation insofar as they apply to the relationship between applications for planning permission in respect of quarries, on the one hand, and EU law, on the other, or perhaps more accurately, Irish law as enhanced or supplemented by EU law concerning environmental matters. It concerns matters such as the relationship between past and future development in the context of quarrying; the relationship between retention permission and 'standard' or ordinary permission; the relationship between regularising the past and obtaining permission for future development; and the distinction between an 'ordinary' environmental impact statement and a remedial environmental impact statement.

2 A very specific and net legal issue is presented to the Court for decision. This issue is whether an application for planning permission under s.34 of the Planning and Development Act 2000, as amended, (hereinafter 'the Act of 2000') may be made, and granted, in the particular configuration of circumstances presenting in the present case: these being (a) that the quarry fell into a category which would have required environmental or habitat assessment; (b) that the quarry owner had previously failed to register the quarry with the local planning authority in accordance with his obligation under s.261 of the Act of 2000, as a result of which, by operation of law, it became an 'unauthorised development'; (c) that this resulted in service by the planning authority of an enforcement order in accordance with the regime established by s.261A of the Act of 2000 as amended; (d) that the quarry complied with the enforcement notice and ceased its quarrying operations for six months; (e) that subsequent to this cessation, the quarry owner applied for planning permission in respect of future development by means of an application pursuant to s.34 of the Act of 2000, which application was accompanied by an environmental impact assessment; and (f) where no application for substituted consent was (or apparently could have been) made by the quarry owner or operator under the statutory provisions governing these matters. The question is whether, in these circumstances, such an application for planning permission amounted in effect to a grant of prohibited 'retention permission' contrary to s.34(12) of the Act of 2000 as amended and/or constituted a breach of the requirements of the European Environmental Impact Assessment and the Habitats Directives.

3 The case came before the Court by way of judicial review for an order of certiorari of a decision made by the An Bord Pleanála (hereinafter 'the Board) on the 17th May 2016 upholding a decision of the second notice party, Cork County Council, (hereinafter 'the Council') in respect of a grant of planning permission for a quarry owned and operated by the first notice party and further, a declaration that this decision was ultra vires the first respondent's powers. The applicants also seek a declaration that the second and third respondents have failed to give effect to the decision of the CJEU in Case C-215/06 Commission of the European Communities v Ireland [2008] ECR I-4911 and the substantive requirements of the EIA Directive insofar as the relevant transposing legislation permits a developer who has engaged in unauthorised development to comply with an enforcement notice under s. 154 of the Planning and Development Act 2000 and upon compliance submit an application for planning permission pursuant to s. 34 of the Planning and Development Act 2000 rather than avail of the substitute consent procedure in Part. XA of and ss. 261-261A of the same Act. A stay was also sought to prevent the first named notice party from carrying out any works at the quarry site and if necessary, a preliminary reference to the Court of Justice of the European Union (CJEU) pursuant to Art. 267 of the Treaty on the Functioning of the European Union.

Relevant Facts/Chronology

4 The most important features of the chronology set out below, for present purposes, are that the quarry failed to register with its local planning authority under s.261 of the Act of 2000; that it was refused planning permission in 2011; that it was the subject of a determination in 2012 by the Council that it was an 'unauthorised development'; that it was served with an enforcement notice as a result of which it ceased activities for 6 months, ending on the 17th October, 2014; and that it subsequently made a successful application for planning permission to the Council, subsequently upheld by the Board in 2015.

5 The quarry in issue in these proceedings is situated at Ardcahan, Dunmanway, in County Cork. It was purchased at some time by Murray Brothers Tarmacadam Ltd. (hereinafter 'the Developer') from Cork County Council (hereinafter 'the Council'). When the obligation pursuant to s.261 of the Act of 2000 to register the quarry came into force, in the 2004/5 period, the Developer did not comply with its statutory obligation to register with the Council. This is a matter of considerable significance in the case.

6 On the 25th May, 2011, the Developer made an application to the Council for planning permission in respect of the quarry. On the 13th July, 2011 the Council refused to grant the permission sought on the grounds that it was an extension of an existing unauthorised quarry and was not supported by an Environmental Impact Statement (EIS) or a Natura Impact Statement (NIS).

7 In accordance with its obligation pursuant to s.261A of the Act of 2000, as amended, (discussed below), the Council examined this particular quarry. On the 23rd August, 2012 the Council made a formal determination. This concluded first, that development had been carried out at the site since 1 February 1990 such as to require an Environmental Impact Assessment (EIA), and since 26 February 1997 such as to require an Appropriate Assessment (AA), and that neither form of assessment had been carried out. It also stated that although a pre-1964 use had existed at the quarry, this had not been properly registered under s.261 before the deadline of April 2005. Accordingly, it determined that the quarry was an 'unauthorised development' within the meaning of s.261(10) of the Act of 2000.

8 On the 25th November, 2013, and in accordance with the procedures mandated by s.261A, the Council issued an enforcement notice to the Developer pursuant to s. 154 of the Act of 2000. The enforcement notice required, inter alia, the cessation of quarrying at the site within a six-month period. It did not require the taking of any remedial steps with regard to the operation that had been carried out there in the past.

9 Although there was some dispute as to precisely when the enforcement notice was complied with, it is clear that that this had taken place by the 17th October, 2014 at the latest, because on this date, the Council wrote to the Developer stating that the enforcement notice had been complied with and was now closed.

10 On the 24th October, 2014, one week after the Council had communicated that the enforcement notice had been complied with, the Developer submitted a planning permission application to the Council pursuant to s. 34 of the Planning and Development Act 2000 i.e. an application for 'standard' or 'conventional' planning permission. This application was accompanied by an Environmental Impact Statement (EIS). It was also accompanied by a legal opinion setting out the conclusion of the author that the application could be considered a standard application for planning permission once the terms of the 2013 enforcement notice had been complied with. It may be noted that the EIS...