Maguire T/A Frank Pratt & Sons v Meath County Council ; Phoenix Rock Enterprises Ltd T/A Frank Pratt & Sons Ltd v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Ms. Justice Niamh Hyland
• Judgment Date: 12 December 2022
• Neutral Citation: [2022] IEHC 707
• Court: High Court
• Docket Number: RECORD NO. 2013/567JR

Between

Fursey Maguire, Ivan Pratt and Frank Pratt T/A Frank Pratt and Sons

Applicants

and

Meath County Council

and

An Bord Pleanála

and

Ireland & The Attorney General

Respondents

Between

Phoenix Rock Enterprises Limited T/A Frank Pratt & Sons Limited

Applicant

and

An Bord Pleanála

and

Ireland and The Attorney General

Respondents

[2022] IEHC 707

RECORD NO. 2013/567JR

Record No. 2020/438JR

THE HIGH COURT

JUDICIAL REVIEW

Planning – Appropriate assessment – Substituted consent – Applicant challenging the respondent’s decision to refuse leave to seek substituted consent – Whether the reasons for the respondent’s decision were inadequate

Facts: The first set of proceedings, Fursey Maguire, Ivan Pratt and Frank Pratt t/a Frank Pratt & Sons v Meath County Council & Ors (Record No. 2013/567JR), concerned a challenge by the owners of the Moyfin quarry near Longwood in Co. Meath to a decision of Meath County Council in 2012 under s. 261A(4)(a) of the Planning and Development Act 2000 as amended that the quarry required a mandatory Environmental Impact Statement and an Appropriate Assessment (AA). That decision was upheld by An Bord Pleanála (the Board) by decision of 29 May 2013. The Council served an enforcement notice dated 24 June 2013 on the first applicant and a second enforcement notice of the same date in identical terms on the second and third applicants. The Council’s decision, the Board’s decision and the enforcement notices were all the subject of challenge in those proceedings. When the proceedings came on for hearing on 12 November 2018, an agreement was reached between the parties that the proceedings would be adjourned pending an application by the operator of the quarry, Phoenix Rock Enterprises Ltd, to the Board for leave to seek substituted consent under s. 177C of the 2000 Act. That application was duly made. On 11 March 2020, the Board refused the applicant leave. The second set of proceedings, Phoenix Rock Enterprises Limited t/a Frank Pratt & Sons Limited v An Bord Pleanála & Ors (Record No. 2020/438JR), were concerned with a challenge to that decision.

Held by Hyland J that, regarding the Fursey Maguire proceedings, the argument raised by the applicants to the effect that a quarry subject to conditions under s. 261 of the 2000 Act cannot be the subject of a decision under s. 261A had already been comprehensively rejected. She held that the plea of legitimate expectation must fail; the Council was entitled to revisit its acceptance in 2007 that the quarry was operating pre-1964 in the context of an entirely new legislative regime and no representation had been made by the Council that it would not revisit the issue. She could not agree that there was an absence of fair procedures in the manner the Board dealt with the appeal, or that it failed to allow the applicants to be properly heard. She could not agree that the evidence before her was so scant or unsatisfactory that she should quash the decision. She held that there was no basis for arguing the Council acted unlawfully in issuing the enforcement notices; it was obliged to issue them and had no discretion in the matter. She upheld the Board’s conclusion that this was not a pre-1964 development; therefore, the applicant could not rely on a pre-1964 development point. She refused the application for judicial review in respect of the Board’s decision of 29 May 2013 and the enforcement notices issued by the Council.

Hyland J held that, regarding the Phoenix proceedings, she could see no factual error in the Board’s conclusion that the applicant was in breach of Condition 2. She held that there was nothing in s. 177D(2) of the 2000 Act to suggest the Board was limited in this case to considering the applicant’s belief exclusively when a decision was first made that an Environmental Impact Assessment/AA was required or when the 5 hectare threshold was exceeded. She was satisfied that the reasons for the Board’s decision were adequate and the applicant’s challenge on a lack of reasons must fail. She held that the applicant must be treating as having available to it all the information the Board would inevitably have to engage with when deciding upon the applicant’s claim that it had complied with Condition 2. It was hard to see how the Board’s decision to address the lack of compliance head on in its decision breached the applicant’s right to fair procedures in the circumstances. She held that the Board had regard to each of the seven criteria under s. 177D(2); it concluded that the applicant failed to meet two of those criteria and that was a sufficient basis to refuse the application. She dismissed the proceedings.

Proceedings dismissed.

JUDGMENT of Ms. Justice Niamh Hyland of 12 December 2022

Introduction

1 This judgment encompasses two sets of proceedings, Fursey Maguire, Ivan Pratt and Frank Pratt t/a Frank Pratt & Sons v Meath County Council & Ors (Record No. 2013/567JR) and Phoenix Rock Enterprises Limited t/a Frank Pratt & Sons Limited v An Bord Pleanála & Ors (Record No. 2020/438JR). Both cases are concerned with the Moyfin quarry near Longwood in Co. Meath and its status from a planning point of view.

2 The first case concerns a challenge by the owners of the quarry to a decision of Meath County Council (the “Council”) in 2012 under s.261A(4)(a) of the Planning and Development Act 2000 as amended (the “2000 Act”) that the Moyfin quarry required a mandatory Environmental Impact Statement (“EIS”) and an Appropriate Assessment (“AA”). This decision was upheld by An Bord Pleanála (the “Board”) by decision of 29 May 2013. Following the Board's decision, the Council served an enforcement notice dated 24 June 2013 on the first applicant and a second enforcement notice of the same date in identical terms on the second and third applicants. The Council's decision, the Board's decision and the enforcement notices are all the subject of challenge in these proceedings.

3 The proceedings are of some antiquity at this point. This is explained by the fact that, when they finally came on for hearing on 12 November 2018, an agreement was reached between the parties that the proceedings would be adjourned pending an application by the operator of the quarry to the Board for leave to seek substituted consent under s.177C of the 2000 Act. Section 177D provides the Board may grant leave where it is satisfied that an EIA or AA AA was or is required and is further satisfied, inter alia, that exceptional circumstances exist such that the Board considers it appropriate to permit the opportunity for regularisation of the development by permitting an application for substitute consent.

4 That application for leave to apply for substitute consent was duly made by the operator of the quarry, Phoenix Rock Enterprises Ltd. (“Phoenix”), who operates the development pursuant to a licence granted by the first applicant. On 11 March 2020, the Board refused the applicant leave. The second set of proceedings are concerned with a challenge to that decision. The refusal by the Board to grant leave prompted the applicant to set the Fursey Maguire case down for determination. It was decided that both cases would be heard together due to the inter-related nature of the issues raised.

5 In both sets of proceedings, the constitutionality of various legislative provisions has been challenged and Ireland and the Attorney General are parties to both sets of proceedings. It has been agreed in both sets of proceedings that the case against Ireland and the Attorney General should not proceed until the case against the other respondents is determined. Therefore, in this judgment, I do not consider the constitutionality of the legislation impugned by the applicants.

FURSEY MAGUIRE PROCEEDINGS

Factual Background

6 Leave was given by Peart J. to bring those proceedings on 15 July 2013 in respect of (a) the decision of the Council of 1 August 2012 that the applicant's quarry required a mandatory EIS and an AA under s.261A(4)(a), (b) the decision by the Board of 29 May 2013 to uphold the decision of the Council; and (c) the enforcement notices issued by the Council on 24 June 2013. The Order of 15 July 2013 granting leave does not in fact stay the enforcement notices but rather gives leave to seek an Order staying the notices. However, as is clear from the documents issued by the Council post the grant of leave, all parties appear to have treated the grant of leave as a stay on the enforcement notices.

Arguments of the Parties

7 Prior to the s.261A decision made by the Council in 2012, the Council had registered the quarry under s.261 of the 2000 Act and imposed conditions in 2007. By so doing, the Council accepted the first applicant's submission that the quarry at Moyfin benefited from pre-1964 user status. The applicants plead in the Statement of Grounds that it is not open to the Council, having determined pursuant to s.261 that the quarry was a pre-1964 quarry, to subsequently change its mind and 7 years later make a new determination to the effect that the development did not commence prior to 1 October 1964 in the context of the s.261A decision. It is argued that if s.261A operates in a manner to permit an authority to act in this way, then it is unconstitutional.

8 It is also pleaded that the applicants had a legitimate expectation that the determination made under s.261 in 2007, and the conditions attached, would remain binding on the applicants and the Council.

9 The applicants further plead that they were given no opportunity to address the Council in respect of the pre-1964 user of the lands and in particular, no chance to address the Council on the aerial photography considered by it when deciding in 2012 that the quarry did not benefit from the pre-1964 user. It is pleaded the decision was in breach of natural and constitutional justice and fair procedures.

10 It is argued that the applicants have...