Mcgrath Limestone Works Ltd v an Bord Pleanála and Others
| Jurisdiction | Ireland |
| Judge | Mr Justice Charleton |
| Judgment Date | 30 July 2014 |
| Neutral Citation | [2014] IEHC 382 |
| Court | High Court |
| Docket Number | 78 JR/2014 |
| Date | 30 July 2014 |
Between
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[2014] IEHC 382
The High Court
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 that a reasonable person reading the planning file, or indeed a reasonable person without the planning file, would have understood what the decision of An Bord Pleanála was and would also comprehend the reasons underpinning that decision. In relation to the claim that An Bord Pleanála had acted unreasonably, Justice Charleton in applying the principles emanating from Weston Limited v An Bord Pleanála [2010] IEHC 255 and others, reasoned that there has been nothing unreasonable about the analysis of An Bord Pleanála. Nor was it vitiated by any error of law. In respects of the time point issue, Justice Charleton stated that there was no reason for the time point raised by Mayo County Council against the challenge of the appellant to succeed as it was invalid. Lastly, in dealing with the constitutionality arguments, Justice Charleton, reasoned that the applicable domestic and EU legislation has been construed in a constitutional manner. For all of these reasons, the application for judicial review was refused.
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 1998/34/13...
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