Peter Sweetman v an Bord Pleanála and Others

[2015] IEHC 285

THE HIGH COURT

[2 JR/2015]

Sweetman v Bord Pleanala & Ors

BETWEEN

PETER SWEETMAN

PLAINTIFF

AND

AN BORD PLEANÁLA, IRELAND AND THE ATTORNEY GENERAL, AND THOMAS HEUSTON

DEFENDANTS

2015/2JR - Hedigan - High - 15/5/2015 - 2015 IEHC 285

Planning Authority – Substitute consent – Delay pursuant to s. 52 of The Planning and Development Act, 2000 (as amended) – Collateral challenge.

1

This is an application by the second and third respondents state to strike out the judicial proceedings insofar as they seek to challenge certain provisions of the planning legislation. The state contends that the challenge to the planning legislation is inadmissible by reason of delay. The application is based upon the proposition that the applicant is in reality mounting a collateral challenge to the decision or determination of Donegal County Council made on the 29^th June 2012 in which it directed the notice party herein to apply for "substitute consent" pursuant to s.261a and Part 10a of the Planning and Development Act 2000 as amended. If it is such a collateral challenge then, argue the state, it is well out of time pursuant to s. 52 of the same Act.

2

The applicant argues that not only has he no interest in challenging this decision of Donegal County Council in fact he strongly agrees with it. He considers it is in accord with and required by Irish and European law. He argues that the"substitute consent" in question is granted by An Bord Pleanála and it is that grant which he challenges in the substantive action. He wishes to argue that if the board is required by Irish law to ascertain whether the case is exceptional and the developer is not trying to circumvent EU law, then if did not do so. In that case, its decision to grant the substituted consent is unlawful. In the alternative, if the board is not under such a legal obligation then he will argue that Irish law is not in conformity with EU law as expounded by the Court of Justice in Commission v. Ireland case 215 06 where it stated at para. 57 of its judgment as follows

"While Community law cannot preclude the applicable national rules from allowing, in certain cases, the regularisation of operations or measures which are unlawful in the light of Community law, such a possibility should be subject to the conditions that it does not offer the persons...