Patrick McCaffery and Sons Ltd v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Ms. Justice Mary Rose Gearty
• Judgment Date: 14 June 2024
• Neutral Citation: [2024] IEHC 315
• Court: High Court
• Docket Number: [2017 586 JR]

Between:

Patrick McCaffrey and Sons Ltd

Applicant

and

An Bord Pleanála

Respondent

[2024] IEHC 315

[2017 586 JR]

THE HIGH COURT

JUDGMENT ofMs. Justice Mary Rose Geartydelivered on the 14 ^th of June, 2024

1. Introduction

1.1 This Applicant Company, the owner of a limestone quarry in Donegal, asks the Court to quash two decisions of the Planning Appeals Board: one was a decision to dismiss an application for substitute consent to continue its quarrying operations and the other a decision to refuse conventional planning permission for further development at the same site. The quarry, to some extent, has been in operation since the 1940's.

1.2 The application for substitute consent was made pursuant to a statutory direction given by the planning authority. The parties dispute the extent of the quarry captured by this direction. The quarry involved in this application comprises three identifiable areas. The quarry covers a total area of over 33 hectares. The main issue raised is whether or not the planning authority (and subsequently the Respondent) was entitled to treat the quarry as a single planning unit and to direct that the Applicant apply for permission to continue to use the entire quarry. It is argued that the Applicant was only required to apply in respect of one part and not the other two parts of the quarry. This position is confirmed, the Applicant claims, by the representation of a council employee to the effect that only one part of the quarry was to be the subject of the relevant application. It is also argued that the other areas are exempted development and did not require substitute consent.

1.3 The interpretation urged upon the Court by the Respondent Board, that the direction required an application which encompasses the entire quarry and not just one part of it, is the most reasonable one and is in line with the planning history of the quarry. This conclusion is in accordance with the express terms of the direction given by the planning authority, which was not appealed, and is in accordance with formal clarification later given by the Board. Any other interpretation is incompatible with the plain meaning of the direction and with the legislative trend towards more rigorous environmental conservation.

1.4 The refusal of permission for further development was reasonable and proportionate.

1.5 The application for certiorari is refused.

1.6 A number of points were argued in written and oral submissions which had not been pleaded. No such arguments can be considered unless there is a successful application to amend the statement of grounds and no such application was made here.

2. Substitute Consent: Brief History and Recent Cases

2.1 The Local Government (Planning and Development) Act, 1963 (“the 1963 Act”) created an obligation to obtain planning permission for the carrying out of any development which was not exempted development. The carrying out of development without permission, or outside the terms of the permission granted, could constitute a criminal offence. However, a person who developed land without obtaining permission, could apply for “retention permission”, obtaining retrospective permission for the retention of such development.

2.2 The Planning and Development Act, 2000 (“the 2000 Act”) replaced the 1963 Act but the concepts of retention permission and the prospective nature of the earlier Act remained features of the new Act. The Planning and Development (Amendment) Act, 2010, (“the 2010 Act”) amended the 2000 Act. This introduced greater powers to regularise pre-existing quarries, in line with more recent environmental measures.

2.3 A detailed history of these provisions is set out by McKechnie J., in An Taisce v. An Bord Pleanála[2021] 1 IR 119, [2020] IESC 39. He noted that quarries posed particular difficulties for planning authorities due to the nature of their work.Section 261 of the 2000 Act introduced registration requirements for every quarry from its operative date in 2004. This enabled the planning authorities to collect more reliable information from the owners as to the extent of the operation and its effects on the local environment. After the registration process, the planning authority decides if further regulation of the quarry is required and if an environmental impact statement (“EIS”) must be submitted. There is a notification process to ensure transparency and consultation with the applicants and with the public, and, finally, a decision as to the appropriate outcome. This may be a decision to close the quarry or a direction, under s.261(7) of the 2000 Act, as amended, for substitute consent. This means that an element of retrospective permission remains in our legislative scheme.

2.4 The 2000 Act was amended, comprehensively, in 2010 and an already complicated process was made even more intricate but the motivating force behind all these amendments was clear. The word “ omnishambles” was suggested during the oral hearing to describe these legislative developments, but this is unfair to the draftsmen. Those charged with drafting these measures had to weld together several overlapping regimes, created by parliamentarians with different priorities, with an updated system embodying more modern principles and informed by EU policy. The drafters of the 2000 and 2010 Acts were required to devise methods whereby quarries would be subject to the more rigorous EU law requirements, in other words. In an effort to do so, the concept of “substitute consent” was created. This is a variation of retention permission which allows certain quarries to remain in operation subject to conditions, with an emphasis on environmental protection which has been strengthened by the rigorous approach taken in the EU, both when drafting the relevant directives and deciding cases of the Court of Justice of the European Union (“CJEU”) over the last 15 years. The Directives most relevant to this area of law are the Environmental Impact Assessment (“EIA”) Directive (2011/92/EU as amended by Directive 2014/52/EU) and the Habitats Directive (92/43/EEC).

2.5 The section at the heart of this case, s.261A of the 2000 Act, as amended in 2010, was introduced following the decision in Commission v. Ireland (Case C-215/06, judgment of 3rd July, 2008, ECLI:EU:C:2008:380). There, the ECJ held that national measures could permit retrospective regularisation but stated that such provisions could not allow developers to circumvent or disapply the rules of development and that retrospective regularisation “ should remain the exception”.

2.6 McKechnie J. commented on Case C-215/06 in An Taisce v. An Bord Pleanála, confirming these objectives. He added (at para 75):

“ Arguably … the assessment carried out for regularisation must take into account the environmental impact from day one of the development (Castelbellino Case C-117/17 (para. 30)) and [that] the State, pursuant to the principle of cooperation and good faith as laid down in Article 4 TEU, must nullify the unlawful consequences caused by a failure to implement or properly implement or utilise the Directive (Corridonia: Cases C-196/16 and C-197/16, paras. 35 and 43). Whilst the matters last mentioned also arise in a different context, nonetheless they demonstrate the restrictive nature of how and when such a process may be availed of.”

2.7 Section 261A of the 2000 Act, as amended, aims to control the development of pre-1964 quarries. It provides, inter alia, that where a planning authority is satisfied that development was carried out on a relevant site after the relevant dates, in respect of which an EIA or Appropriate Assessment (“AA”) was required, but was not carried out, it can serve a notice on the owner or occupier requiring her to apply to the Board for “ substitute consent.” This is, effectively, an opportunity to regularise, retrospectively, the operations of the relevant quarry.

2.8 In Fursey Maguire and Ors. v. An Bord Pleanála, [2022] IEHC 707, Hyland J. outlined the history of s.261 and its purpose, namely, to regulate quarries in light of evolving environmental laws imposed by the EU and to find a way to ensure that the EIAs and AAs under the relevant Directives were conducted, even in respect of businesses and activities long established, acknowledging that their activities were ongoing and the effects on the environment ever-changing and capable of remediation.

2.9 Section 261A of the 2000 Act, as inserted in 2010, begins with provisions about public notification of its effects. At subsection (2), it continues:

“(2) (a) Each planning authority shall, not later than 9 months after the coming into operation of this section examine every quarry within its administrative area and make a determination as to whether—

(i) development was carried out after 1 February 1990 […] which development would have required, having regard to the Environmental Impact Assessment Directive, an environmental impact assessment or a determination as to whether an environmental impact assessment was required, but that such an assessment or determination was not carried out or made, or

(ii) development was carried out after 26 February 1997, […] which development would have required, having regard to the Habitats Directive, an appropriate assessment, but that such an assessment was not carried out.

(b) In making a determination under paragraph (a), the planning authority shall have regard, to the following matters:

(i) any submissions or observations received by the authority not later than 6 weeks after the date of the publication of the notice under subsection (1)(a).

(ii) any information submitted to the authority in relation to the registration of the quarry under section 261;

(iii) any relevant information on the planning register;

(iv) any relevant information obtained by the planning authority in an enforcement action relating to the...