Mcgrath Limestone Works Ltd v an Bord Pleanála and Others

JurisdictionIreland
CourtHigh Court
JudgeMr Justice Charleton
Judgment Date30 July 2014
Neutral Citation[2014] IEHC 382
Docket Number78 JR/2014
Date30 July 2014

[2014] IEHC 382

The High Court

78 JR/2014
40 COM/2014
McGrath Limestone Works Ltd v Bord Pleanala & Ors
An Ard Chúirt
Commercial

Between

McGrath Limestone Works Limited
Applicant

and

An Bord Pleanála
Respondent

and

Ireland and the Attorney General
Respondent

and

Mayo County Council
Respondent

and

Andrew Fleming and the Human Rights Commission
Notice Parties

PLANNING & DEVELOPMENT ACT 2000 S261A

PLANNING & DEVELOPMENT ACT 2000 S177E

PLANNING & DEVELOPMENT ACT 2000 S50

PLANNING & DEVELOPMENT ACT 2000 S261A(2)(A)(i)

PLANNING & DEVELOPMENT ACT 2000 S261A(2)(A)(ii)

PLANNING & DEVELOPMENT ACT 2000 S261A(3)(A)

PLANNING & DEVELOPMENT ACT 2000 PART XA

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) REGS 1989 SI 349/1989

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 SCHED 5

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 SCHED 7

EEC DIR 92/43

PLANNING & DEVELOPMENT ACT 2000 S261

PLANNING & DEVELOPMENT ACT 2000 (COMMENCEMENT) ORDER 2004 SI 152/2004

O'REILLY v GALWAY CITY COUNCIL UNREP CHARLETON 26.3.2010 2010/42/10542 2010 IEHC 97

AN TAISCE - THE NATIONAL TRUST FOR IRELAND v IRELAND & AG UNREP CHARLETON 25.11.2010 2010/2/503 2010 IEHC 415

PIERSON & ORS v KEEGAN QUARRIES LTD UNREP IRVINE 8.12.2009 2009/46/11557 2009 IEHC 550

ROADSTONE PROVINCES LTD v BORD PLEANALA UNREP FINLAY GEOGHEGAN 4.7.2008 2008/55/11515 2008 IEHC 210

M & F QUIRKE & SONS & O'CONNOR v BORD PLEANALA & ORS 2010 2 ILRM 93 2009/38/9488 2009 IEHC 426

MINES & QUARRIES ACT 1965 S3

PLANNING & DEVELOPMENT ACT 2000 S261(7)

PLANNING & DEVELOPMENT ACT 2000 S261(6)

CONSTITUTION ART 6

WILEY v REVENUE CMRS 1994 2 IR 160 1993 ILRM 482 1992/4/1204

ASHBOURNE HOLDINGS LTD v BORD PLEANALA & CORK CO COUNCIL 2003 2 IR 114 2003 2 ILRM 446 2003/3/564

GREEN DALE BUILDING CO LTD, IN RE 1977 IR 256

HENCHY THE IRISH CONSTITUTION & THE EEC 1977 DULJ 20

CONSTITUTION ART 29.4.10

PLANNING & DEVELOPMENT (AMDT) ACT 2010 S75

PLANNING & DEVELOPMENT (AMDT) ACT 2010 (COMMENCEMENT) (NO 3) ORDER 2011 SI 582/2011

EUROPEAN UNION (ENVIRONMENTAL IMPACT ASSESSMENT & HABITATS) REGS 2011 SI 473/2011

EUROPEAN UNION (ENVIRONMENTAL IMPACT ASSESSMENT & HABITATS) REGS 2012 SI 246/2012

EEC DIR 85/337

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) (AGRICULTURE) REGS 2011 SI 456/2011

EUROPEAN COMMUNITIES (NATURAL HABITATS) REGS 1997 SI 94/1997

PLANNING & DEVELOPMENT ACT 2000 S261A(2)

PLANNING & DEVELOPMENT ACT 2000 S261A(1)

PLANNING & DEVELOPMENT ACT 2000 S261A(5)

PLANNING & DEVELOPMENT ACT 2000 S261A(6)

PLANNING & DEVELOPMENT ACT 2000 S261A(11)

PLANNING & DEVELOPMENT ACT 2000 S261A(12)

PLANNING & DEVELOPMENT ACT 2000 S261A(13)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 PART IV

CMSN v IRELAND 2008 ECR I-4911 2009 ENV LR D3

PLANNING & DEVELOPMENT ACT 2000 S134A

PLANNING & DEVELOPMENT (STRATEGIC INFRASTRUCTURE) ACT 2006

PLANNING & DEVELOPMENT (STRATEGIC INFRASTRUCTURE) ACT 2006 (COMMENCEMENT) (NO 3) ORDER 2006 SI 684/2006

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD & ORS v AG 1970 IR 317

PLANNING & DEVELOPMENT ACT 2000 S50(1)

O'KEEFFE v BORD PLEANALA & O'BRIEN 1993 1 IR 39 1992 ILRM 237

PLANNING & DEVELOPMENT ACT 2000 S34(10)

GREALISH v BORD PLEANALA 2007 2 IR 536 2006/27/5728 2006 IEHC 310

MULHOLLAND & KINSELLA v BORD PLEANALA 2006 1 IR 453 2006 1 ILRM 287 2005/40/8371 2005 IEHC 306

O'NEILL v BORD PLEANALA UNREP HEDIGAN 1.5.2009 2009/45/11350 2009 IEHC 202

PLANNING & DEVELOPMENT ACT 2000 S34(10)(B)

FAIRYHOUSE CLUB LTD & ORS v BORD PLEANALA & MEATH CO COUNCIL UNREP HIGH COURT FINNEGAN 18.7.2001 2001/9/2432

MALLAK v MIN FOR JUSTICE 2012 3 IR 297 2013 1 ILRM 73 2012/24/6926 2012 IESC 59

EMI RECORDS (IRL) LTD & ORS v DATA PROTECTION CMSR 2014 1 ILRM 225 2013/18/5315 2013 IESC 34

PLANNING & DEVELOPMENT ACT 2000 S261A(2)(A)

WESTON LTD v BORD PLEANALA UNREP CHARLETON 1.7.2010 2010/53/13257 2010 IEHC 255

WATERFORD CO COUNCIL v JOHN A WOOD LTD 1999 1 IR 556 1999 1 ILRM 217 1998/34/13063

PLANNING & DEVELOPMENT ACT 2000 S50(2)

PLANNING & DEVELOPMENT ACT 2000 S50(6)

PLANNING & DEVELOPMENT ACT 2000 S50(8)

MACMAHON v BORD PLEANALA UNREP CHARLETON 8.12.2010 2010/31/7737 2010 IEHC 431

INTERPRETATION ACT 2005 S5

CONSTITUTION ART 15.5.1

SLOAN v CULLIGAN 1992 1 IR 223 1991 ILRM 641 1991/6/1338

HEFFERON KEARNS LTD (NO 1), IN RE; HEFFERON & ORS v DUBLIN HEATING CO LTD 1993 3 IR 177 1992 ILRM 51 1991/8/1875

HOGAN & WHYTE JM KELLY: THE IRISH CONSTITUTION 4ED 2003 PARA 4.2.1

CONSTITUTION ART 40.3

CONSTITUTION ART 43

CONSTITUTION ART 43.2

CONSTITUTION ART 43.2.2

NATIONAL ASSET LOAN MANAGEMENT LTD v MCMAHON & ORS UNREP CHARLETON 16.1.2014 2014 IEHC 71

CROTTY v AN TAOISEACH & ORS 1987 IR 713 1987 ILRM 400

LAWLOR v MIN FOR AGRICULTURE & DUFFY 1990 1 IR 356 1988 ILRM 400 1987/7/1798

MEAGHER v MIN FOR AGRICULTURE & ORS 1994 1 IR 329 1994 1 ILRM 1

MAHER & ORS v MIN FOR AGRICULTURE & ORS 2001 2 IR 139

Judicial Review – Environmental Impact Assessment – Consent – Planning and Development – Constitution – Practice and Procedure

Facts: This case concerned a challenge by the applicant quarry firm McGrath Limestone Works Limited to a decision of the respondent An Bord Pleanála of 16 December 2013, upon review of a notice issued by the respondent Mayo County Council, on 17 August 2012, under section 261A of the Planning and Development Act 2000, as amended, that adversely impacted on the continuation of quarrying works at a site at Cong in County Mayo between Lough Mask and Lough Corrib. That notice required that an application for substitute consent be made within 12 weeks under section 177E of the Act of 2000. Such an application had to be accompanied by an environmental impact statement and an appropriate assessment, referable to the Environmental Impact Assessment Directive and the Habitats Directive. No such prior assessment had been made. The applicant claimed that there were no proper reasons given for either decision; that an earlier assurance by Mayo County Council on 3 April 2007 prevented the later order through legitimate expectation; that the decisions of Mayo County Council and An Bord Pleanála were irrational; that both the decisions were arrived at in breach of fair procedures; that same were an impermissible attack on property rights; that there had been a condemnation on a criminal offence without trial; and that section 261A of the Act of 2000 was unconstitutional and therefore of no effect. The respondents contended to the contrary.

Held by Justice Charleton that the applicants claim that on registering their quarry under section 261 that the respondent, by imposing conditions as opposed to exercising any other power, established a legitimate expectation that never in the future would it be required that the quarry comply with any other legal imposition was improper. In light of the applicable case-law and legislation, Justice Charleton determined that there was nothing in Section 261 which enabled a local planning authority to make any binding determination that a quarry if registered subject to conditions would thereafter be exempt from the need to apply for planning permission if investigation or admission uncovered, for instance, that any unauthorised development had taken place or that any declared status by quarry owners that they were outside the scope of the planning code because of use existing in 1964 was optimistic. Whilst the appellant further argued that an environmental impact assessment did not need to be engaged because of what were claimed to be high levels of environmental protection on site and suggested conditions instead, Justice Charleton, in light of the evidence available, determined that the respondent had made no such declaration such as that they accepted this or that they had inspected the site thoroughly and that no impact on the environment or on protected habitats could possibly arise either then or into the future. Nor was there a declaration, that the status of the quarry had been decided for ever and from that point on. Consequently, it was reasoned that nothing had changed in the status of the quarry either because of registration or because of the imposition of conditions of operation on the quarry. Any representation sufficient to have set up a legitimate expectation would, in this instance it was reasoned, have been a trespass into the sovereign authority of the State under Article 6 of the Constitution. Moreover, having examined the applicable habitats Directives, it was reasoned that the proper procedures had been carried out and that all interested parties had had the opportunity to plead their points of views as to the facts. In respects of the Improper Analysis issue, it was further decided that there had been a thorough and accurate analysis by both the respondent and An Bord Pleanála, which, had been concerned with the implementation of section 261A of the Act of 2000 in a manner consistent with the European law obligations of the State. It was claimed, however, that the reasons given where inadequate. It was said that the express terms of section 261A required a review of the decision of Mayo County Council by An Bord Pleanála and that there was no consideration of that at all. It was further stated that the statutory inspector appointed was wrongly concerned with the quarry and its history, and not the decision of Mayo County Council. According to Justice Charleton, the function of An Bord Pleanála under section 261A was to review and then to confirm/ set-aside the determinations reached under section 261A(2) (a)and section 261A(3) (a). The reasons given in respect of section 261A(2) (a)(i) and (ii) where deemed to be transparent from the relevant wording and in light of the inspectors report. Thus, the court could find no defect in the reasoning of An Bord Pleanála or inadequacy in the reasons stated. It was thus determined...

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13 cases
  • Kelly v an Bord Pleanála
    • Ireland
    • High Court
    • 8 February 2019
    ...J.) (‘ O'Donoghue’), Mulholland v. An Bord Pleanála (No. 2) [2005] 1 IR 453 (Kelly J.) (‘ Mulholland’), Christian v. Dublin City Council [2014] IEHC 382 (High Court, Clarke J.) (‘ Christian’), International Fishing Vessels Limited v. Minister for Marine, [1989] IR 149 (High Court, Blayney......
  • An Taisce v an Bord Pleanala, an Taisce v an Bord Pleanala, Sweetman v an Bord Pleanala
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    • Supreme Court
    • 1 July 2020
    ...parts of the Act. (Waterford County Council v. John A. Wood [1998] IESC 32, [1999] 1 I.R. 556, McGrath Limestone v. An Bord Pleanála [2014] IEHC 382 (Unreported, High Court, Charleton J., 30th July, 2014)). In reality this meant that in respect of established works or uses existing at that ......
  • Shillelagh Quarries Ltd v an Bord Pleanála
    • Ireland
    • High Court
    • 11 June 2019
    ...Court in An Taisce v. Ireland & Ors [2010] IEHC 415 (‘ An Taisce (2010)’) and McGrath Limestone Works Limited v. An Bord Pleanála & Ors [2014] IEHC 382 (‘ McGrath Limestone’)). The Board further contended that the interpretation it adopted was correct having regard to the European context......
  • Hayes v an Bord Pleanála
    • Ireland
    • High Court
    • 17 May 2018
    ...landscape after the 2010 Act amendments has been considered in a number of judgments. In McGrath Limestone Works Ltd v., A Bord Pleanála [2014] IEHC 382, the planning authority had, pursuant to s.261A, required that an application for substitute consent be made in respect of a quarry which ......
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