Moore v an Bord Pleanala
| Jurisdiction | Ireland |
| Judge | Ms. Justice Miriam O'Regan |
| Judgment Date | 04 December 2020 |
| Neutral Citation | [2020] IEHC 652 |
| Date | 04 December 2020 |
| Docket Number | [No. 2018/1072 JR] |
| Court | High Court |
AND
AND
AND
[2020] IEHC 652
Miriam O'Regan
[No. 2018/1072 JR]
THE HIGH COURT
JUDICIAL REVIEW
Judicial review – Substitute consent – Future planning permission – Applicant seeking judicial review – Whether the respondent’s decisions were unlawful
Facts: The applicant, Mr Moore, secured leave on the 14th January, 2019, to maintain the proceedings. The claim against the first respondent, An Bord Pleanála (ABP), was for an order of certiorari in respect of two decisions made, both of the 24th of October, 2018, granting the notice party, Kilsaran Concrete (Kilsaran), substitute consent (SC) and granting Kilsaran permission to further develop its quarry. It was asserted that ABP: (a) failed to apply s. 177E of the Planning and Development Act 2000 as amended (PDA) in failing to have regard to the test for exceptional circumstances, in failing to have regard to the unauthorised user of the lands in circumstances where the developer could not have believed the development was authorised and therefore the planning permission afforded cannot be reconciled with the European Directive; (b) erred in determining that the quarry was regularised by the consent achieved in private law proceedings as between residents of the Bellewstown area and others against Kilsaran pursuant to the provisions of s. 160 of the PDA; (c) erred in failing to have regard to the concerns expressed as to the scope and limits of SC as identified in An Taisce - The National Trust for Ireland v McTigue Quarries Ltd [2018] IESC 54; (d) failed to comply with the Court of Justice of the European Union (CJEU) decision of Commission v Ireland, Case C-215/06; (e) rejected the Inspector’s report and various objector’s concerns were not duly considered; (f) failed to hold an oral hearing; (g) the decision is irrational on the basis that the evidence before ABP conclusively established that the development was unauthorised either by a grant of planning permission or in accordance with s. 261A of the PDA, where there was no basis for a belief that the quarry was planning compliant; and (h) the decision is premised on the existence of exceptional circumstances which cannot be reconciled with the facts. In the reliefs claimed against the second respondent, the Minister for the Environment, Climate and Communications, it was asserted: (1)(a) that the European Communities (Environmental Assessment and Habitats) Regulations 2015 (Statutory Instrument No. 301/2015) are invalid having regard to Article 15.2.1 of the Constitution and therefore ultra vires the powers of the Minister; and/or (b) not made pursuant to s. 3 of European Communities Act 1972; (2)(a) the State has failed to properly or faithfully transpose Directive 2011/92/EU of the European Parliament and of the Council of 13th of December, 2011, on the assessment of certain projects on the environment; and/or, (b) s. 261A of the PDA and/or part XA thereof are contrary to European Law.
Held by O’Regan J that the applicant had not established that: (1) ABP’s decision to grant SC and its decision to grant future planning permission are unlawful; (2) the State has not transposed the provisions of the Directive in accordance with its obligations; and (3) the 2015 Regulations are unlawful.
O’Regan J held that the reliefs claimed by the applicant would be refused.
Reliefs refused.
The applicant secured leave on the 14th January, 2019, to maintain the within proceedings. A further order was made on the 4th of June, 2019, entitling the applicant to amend the statement of grounds in accordance with the said order. The statement to ground the application was ultimately filed on the 16th of July, 2019.
The claim against the first named respondent (‘ABP’) is for an order of certiorari in respect of two decisions made, both of the 24th of October, 2018, granting Kilsaran substitute consent (‘SC’) and granting Kilsaran permission to further develop its quarry.
Insofar as the claims against ABP are concerned it is asserted that ABP:
(a) failed to apply s.177E of the Planning and Development Act 2000 as amended (‘PDA’) in failing to have regard to the test for exceptional circumstances, in failing to have regard to the unauthorised user of the lands in circumstances where the developer could not have believed the development was authorised and therefore the planning permission afforded cannot be reconciled with the European Directive;
(b) erred in determining that the quarry was regularised by the consent achieved in private law proceedings as between residents of the Bellewstown area and others against Kilsaran pursuant to the provisions of s.160 of the PDA;
(c) erred in failing to have regard to the concerns expressed as to the scope and limits of SC as identified in An Taisce- The National Trust for Ireland v. McTigue Quarries Ltd [2018] IESC 54;
(d) failed to comply with the Court of Justice of the European Union (‘CJEU’) decision of Commission v. Ireland, Case C-215/06;
(e) rejected the Inspector's report and various objector's concerns were not duly considered;
(f) failed to hold an oral hearing;
(g) the decision is irrational on the basis that the evidence before ABP conclusively established that the development was unauthorised either by a grant of planning permission or in accordance with s.261A of the PDA, where there was no basis for a belief that the quarry was planning compliant; and,
(h) the decision is premised on the existence of exceptional circumstances which cannot be reconciled with the facts.
In the reliefs claimed against the second named respondent (‘the Minister’) it is asserted:
(1)(a) that the European Communities (Environmental Assessment and Habitats) Regulations 2015 (Statutory Instrument No. 301/2015) (‘the 2015 Regulations’) are invalid having regard to Article 15.2.1 of the Constitution and therefore ultra vires the powers of the Minister; and/or
(b) not made pursuant to s.3 of European Communities Act 1972;
(2)(a) the State has failed to properly or faithfully transpose Directive 2011/92/EU of the European Parliament and of the Council of 13th of December, 2011, on the assessment of certain projects on the environment; and/or,
(b) Section 261A of the PDA and/or part XA thereof are contrary to European Law.
Thereafter in the statement to ground the application it is asserted:
(1) Insofar as the 2015 regulations are concerned, they didn't give effect to either the Environmental Impact Assessment (‘EIA’) Directive or the Habitats Directive and therefore are not incidental supplemental or consequential to same, and were not necessitated by the State's European Union obligations and in the circumstances comprised an impermissible transfer of legislative competence to the Minister rather than resting with the Oireachtas pursuant to Article 15.2.1 of the Constitution.
(2) Insofar as the obligation to transpose is concerned, it is asserted that by permitting delinquent developers without establishing exceptional circumstances, permission to develop in circumstances where there had been unauthorised developments which the developer could not have reasonably believed were exempt or authorised, is not in accordance with the relevant directions as since explained in the CJEU decisions.
(3) It is further argued that if the grant of SC be quashed then the grant of planning permission for further development must also be quashed. I did not understand the respondents or the notice party to disagree with this assertion. In this regard it is clear from the legislation as a whole that insofar as a quarry is concerned SC is one of the necessary prerequisites to the grant of future planning consent (in ABP's Inspector's report of November, 2016 concerning the application for future development, one of the grounds for suggesting future development consent would be refused was that the quarry had not been regularised in accordance with the provisions of s.261A of the PDA - there was no SC granted to Kilsaran).
The relevant quarry is situate at Bellewstown in County Meath comprised in Folio 19959F and Folio 40523F respectively of the Register of Freeholders County of Meath. The applicant resides in Bellewstown aforesaid.
In the various statements of opposition filed by the respondents and the notice party, respectively dated 22nd of May, 2019, 16th of July, 2019, and 15th of July, 2019, it is asserted that the applicant is out of time in maintaining his claim in respect of exceptional circumstances as this was conclusively determined at stage one of a two-stage process in October, 2013 and therefore any challenge to that decision should have been made within 8 weeks in accordance with s.50 of the PDA.
The entirety of the applicant's claim is disputed by the respondents and the notice party.
In extensive written submissions of the 26th of June, 2020, the applicant has identified the refined and reduced issues as follows:
(1) Was ABP's decision to grant Kilsaran SC in respect of its quarry lawful? (the applicant in oral submissions states that this encompasses an asserted failure by ABP to review exceptional circumstances).
(2) Was the Board entitled to grant Kilsaran future development consent?
(3) Has the State by enacting s.261A and part XA of the PDA complied with its obligations to transpose into Irish law the provision of the Directive? and,
(4) Was the Minister entitled to make the 2015 Regulations?
Issue 2 above will be answered effectively by dealing with issues 1, 3 and 4.
The substance of the applicant's arguments in this regard might be summarised as follows:
(1) ABP rejected the Inspector's report without...
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Peter Sweetman v an Bord Pleanála
...European Union (CJEU) under Article 267 of the Treaty on the Functioning of the European Union (TFEU). Although Moore v An Bord Pleanála [2020] IEHC 652 did deal with the adequacy of reasons, it was asserted that the Court did not engage with the Supreme Court judgment in Connolly v An Bord......