Maguire and Others v an Bord Pleanala and Others; Phoenix Rock Enterprises Ltd T/A Frank Pratt & Sons Ltd v an Bord Pleanala and Others
| Jurisdiction | Ireland |
| Judge | Ms. Justice Niamh Hyland |
| Judgment Date | 13 March 2023 |
| Neutral Citation | [2023] IEHC 209 |
| Docket Number | Record No. 2013/567JR |
| Court | High Court |
In the Matter of Sections 50 and 50A of the Planning and Development Act 2000 (As Amended).
and
In the Matter of Sections 50 and 50A of the Planning and Development Act 2000 (As Amended).
and
[2023] IEHC 209
Record No. 2013/567JR
Record No. 2020/438JR
THE HIGH COURT
JUDICIAL REVIEW
Planning and development – Leave to appeal – Public interest – Applicants seeking leave to appeal – Whether it would be in the public interest to resolve the questions identified by the applicants
Facts: The High Court (Hyland J), on 12 December 2022, delivered two judgments in two separate cases. In the case of Fursey Maguire (Record No. 2013/567 JR), Hyland J refused the application for an order quashing the decision of the first respondent, An Bord Pleanála (the Board), of 29 May 2013 under s. 261A(4)(a) of the Planning and Development Act 2000, whereby the Board had upheld a decision of the second respondent, Meath County Council, that the Moyfin quarry, owned by the applicants, required a mandatory Environmental Impact Assessment (EIA) and Appropriate Assessment under the Habitats Directive. In the case of Phoenix Rock Enterprises (Record No. 2020/438 JR), Hyland J refused an application for an order quashing the Board’s decision of 11 May 2020 under s. 177D of the 2000 Act refusing leave to bring an application for substituted consent in respect of the quarry at Moyfin. The applicants in both cases sought leave to appeal those decisions. On 22 February 2023, the applicants identified 12 different questions, all of which they said raised a point of law. The questions were as follows: (1) In circumstances where pursuant to s. 261 of the 2000 Act, a planning authority makes a determination that a quarry is pre-1964 and decides to impose conditions on same pursuant to s. 261(7) what is the legal status of such a quarry in planning terms? (2) Is a planning authority (or the Board) when carrying out a review under s. 261A completely at large in respect of the status of the quarry, and in particular an earlier determination that a quarry is pre-1964? (3) If not, in what circumstances can such authority make a contrary determination, and, what may it have regard to in such a determination? (4) In the context of the determination that an EIA is required can such authority have regard to development carried out after the registration of the quarry pursuant to s. 261 and in accordance with conditions imposed under s.267(7)? (5) Are the matters to which the Board must have regard in determining whether or not exceptional circumstances exist as set out at s. 177D(2)(a)-(g) individually determinative of the issue? (6) Is a determination by the Board that an applicant did not have a ‘reasonable belief’ under s. 177D(2)(b) that its development was unauthorised determinative of a lack of exceptionality? (7) If so, having regard to the consequences of such a determination, what is the Board obliged to consider in reaching that determination and is it obliged to invite submissions from an applicant for substitute consent? (8) What is the appropriate point in time for the consideration of the ‘reasonable belief’ of an applicant under s. 177D(2)(b)? (9) What is the status of conditions imposed under s. 261(7) in circumstances where the basis for the imposition of same (namely pre-1964 commencement) is not followed in a s. 261A determination? Can a developer rely on same or must they continue to comply with same? (10) Is the Board entitled to have consideration for a failure to comply with such a condition in the context of a determination under s. 177D(2)(b)? (11) If so, is the Board entitled to have consideration for a failure to comply with a limitation period imposed under s. 261(7) in circumstances where the developer had already been informed that its entire development is unauthorised by the Board under s. 261A and had received an enforcement from the Council on foot of same? (12) Does s. 177D(2)(f) relate to the development the subject of the application for leave, or does it relate to other developments?
Held by Hyland J that she would refuse to certify any of the questions posed on the basis that they did not raise any questions of exceptional public importance; nor was there any concrete identification as to why it would be in the public interest to resolve the questions identified by the applicants.
Hyland J refused the applicants in both proceedings leave to appeal under s. 50A(7) of the 2000 Act.
Leave to appeal refused.
EX TEMPORE JUDGMENT of Ms. Justice Niamh Hyland delivered on 13 March 2023
On 12 December 2022 I delivered two judgments in two separate cases that were not formally linked but nonetheless were factually intertwined. In the case of Fursey Maguire (Record No. 2013 No. 567JR), I refused the application for an Order quashing the Board's decision of 29 May 2013 under s.261A(4)(a) of the Planning and Development Act 2000 as amended, whereby the Board had upheld a decision of the Council that the Moyfin quarry, owned by the applicants, required a mandatory EIS and Appropriate Assessment under the Habitats Directive.
In the case of Phoenix Rock Enterprises (Record No. 2020/438JR), I refused an application for an Order quashing the Board's decision of 11 May 2020 under s.177D of the 2000 Act refusing leave to bring an application for substituted consent in respect of the quarry at Moyfin.
The applicants in both cases seek to appeal those decisions. The appeal sought to be brought is subject to the special statutory judicial review procedure provided for under s.50A(7) of the 2000 Act. As noted by Simons J. in Halpin v An Bord Pleanala [2019] IEHC 352, one of the features of the procedure is that there is no automatic right of appeal to the Court of Appeal: rather a person seeking to appeal must obtain leave from the High Court.
An application for leave to appeal has been made in both cases. The applicants have by way of legal submissions of 22 February 2023 identified 12 different questions, all of which they say raise a point of law. Four of those questions are in the context of the Fursey Maguire proceedings and eight are in the context of the Phoenix Rock proceedings. The Board provided written submissions on 7 March 2023 and the application for leave to appeal was heard before me on 9 March 2023. The notice party, Meath County Council, indicated that they would not participate in the leave to appeal process.
The questions are as follows:
Fursey Maguire Proceedings
1) In circumstances where pursuant to s.261 of the PDA 2000, a planning authority makes a determination that a quarry is pre-1964 and decides to impose conditions on same pursuant to s.261(7) what is the legal status of such a quarry in planning terms?
2) Is a planning authority (or the Board) when carrying out a review under s.261A completely at large in respect of the status of the quarry, and in particular an earlier determination that a quarry is pre-1964?
3) If not, in what circumstances can such authority make a contrary determination, and, what may it have regard to in such a determination?
4) In the context of the determination that an EIA is required can such authority have regard to development carried out after the registration of the quarry pursuant to s.261 and in accordance with conditions imposed under s.267(7)?
Phoenix Rock Proceedings
5) Are the matters to which the Board must have regard in determining whether or not exceptional circumstances exist as set out at s.177D(2)(a)-(g) individually determinative of the issue?
6) Is a determination by the Board that an applicant did not have a ‘reasonable belief’ under s.177D(2)(b) that its development was unauthorised determinative of a lack of exceptionality?
7) If so, having regard to the consequences of such a determination, what is the Board obliged to consider in reaching that determination and is it obliged to invite submissions from an applicant for substitute consent?
8) What is the appropriate point in time for the consideration of the ‘reasonable belief’ of an applicant under s.177D(2)(b)?
9) What is the status of conditions imposed under s.261(7) in circumstances where the basis for the imposition of same (namely pre-1964 commencement) is not followed in a s.261A determination. Can a developer rely on same or must they continue to comply with same?
10) Is the Board entitled to have consideration for a failure to comply with such a condition in the context of a determination under s.177D(2)(b)?
11) If so, is the Board entitled to have consideration for a failure to comply with a limitation period imposed under s.261(7) in circumstances where the developer had already been informed that its entire development is unauthorised by the Board under s.261A and had received an enforcement from the Council on foot of same?
12) Does s.177D(2)(f) relate to the development the subject of the application for leave, or does it relate to other developments?
The legal test governing leave to appeal is identified at s.50A(7) of the 2000 Act as follows:-
“(7) The determination of the Court of an application for section 50 leave or of an application for judicial review on foot of such leave shall be final and no appeal shall lie from the decision of the Court to the [Court of Appeal] in either case save with leave of the Court which leave shall only be granted where the Court certifies that its decision involves a point of law of exceptional public importance and that it is...
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Donal McMonagail agus a mhic teoranta trading as McMonagle Stone v an Bord Pleanála and Others; Donal McMonagail agus a mhic teoranta trading as McMonagle Stone v Ireland and Others
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