Redrock Developments Ltd v an Bord Pleanála

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms Justice Faherty
• Judgment Date: 21 October 2019
• Neutral Citation: [2019] IEHC 792
• Docket Number: [2017 No. 308 J.R.]
• Date: 21 October 2019

BETWEEN

REDROCK DEVELOPMENTS LIMITED (IN VOLUNTARY LIQUIDATION)

AND

BELCARRIG QUARRIES LIMITED

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

[2019] IEHC 792

Faherty

[2017 No. 308 J.R.]

THE HIGH COURT

Judicial review – Substitute consent – Further development – Applicants seeking judicial review – Whether the respondent’s refusal under s.37L of the Planning and Development Act 2000 was invalid

Facts: The applicants, Redrock Developments Ltd and Belcarrig Quarries Ltd, sought judicial review in respect of two decisions of the respondent, An Bord Pleanála, both made on 15th February, 2017. The first decision was in relation to the first applicant’s application for “substitute consent” - a form of retrospective retention planning permission for historic development. The second decision concerned the second applicant’s application for “further development” of a quarrying operation. Both decisions concerned a quarry on lands at Belcarrig Hill, Ballycanew, Co. Wexford. By order of the High Court (Binchy J) of 11th April, 2017, leave was granted to the applicants to challenge the Board’s refusal to grant substitute consent and the Planning and Development Act 2000 s. 37L application for further development of the quarry. Redrock contended that the Board’s substitute consent decision was wrong in law, procedurally infirm and did not meet the requirements of the legislation, all of which, it was submitted, amounted to a dereliction of its duties by the Board. The grounds upon which certiorari of the s.37L decision was sought were as follows: (i) the refusal was invalid in so far as the Board had regard to an irrelevant or ultra vires consideration, namely the decision to refuse substitute consent, which decision was ultra vires and invalid; (ii) the refusal was invalid in so far as the first bullet pointed reason in the decision did not make sense; (iii) the refusal under s.37L was invalid in so far as the reasons and consideration for refusal were tentative and speculative.

Held by Faherty J that, in all the circumstances, the challenge to the substitute consent decision had not been made out. Faherty J held that the Board’s first bulleted reason for refusing the s.37L application lacked the clarity and rationality that is to be expected from a decision-maker and that the applicants’ ground of claim that the first bulleted reason was insensible had been made out. The Court found that no frailty attached to the Board’s second, third and fourth bulleted reasons for refusal. In the absence of any indication on the face of the decision of the weight given to each individual basis upon which the s.37L application was refused, Faherty J held that it was not open to the Court to sever the Board’s first refusal reason from the decision and leave the balance intact and thus uphold the s.37L decision. In all the circumstances, the Court proposed granting the relief sought by the applicants at d. 2 of the statement of grounds, namely an order of certiorari quashing the Board’s refusal of the s.37L application.

Faherty J held that the relief sought at (d) 1 of the statement of claim would be denied and that the relief sought at (d) 2 thereof would be granted.

Relief granted in part.

Judgment of Ms Justice Faherty dated 21st day of October, 2019

1 This is a judicial review in respect of two decisions of An Bord Pleanála (hereinafter “the Board”), both made on 15th February, 2017. The first decision was in relation to the first applicant's (Redrock's) application for “substitute consent”- a form of retrospective retention planning permission for historic development. The second decision concerned the second applicant's application for “further development” of a quarrying operation. Both decisions concern a quarry on lands at Belcarrig Hill, Ballycanew, Co. Wexford. The site was originally an old pre-1963 quarry. The quarry, like many others, was in operation prior to the inception of the Planning Acts 1964 which meant that it had an established user and was exempt from the requirement to obtain planning permission. It appears that there are enforcement records dating back to 2000 relating to unauthorised quarrying activity at the site. An enforcement notice was issued by Wexford County Council on 3rd April, 2003, ordering the cessation of the quarry use and rehabilitation of the site. Subsequent to the enforcement notice, a planning application was lodged by Redrock on 28th April, 2003 for intensification of user and a new vehicle entrance. The planning authority refused permission. The refusal was appealed to the Board. The Board granted permission for the revised proposal on 17th February, 2004, to expire ten years after the date of grant of permission.

2 The material quarried on site is stone which is used in road and railway construction. Redrock operated the site under the permission granted. The main method of extraction was by means of blasting.

3 Before addressing the background to the within application for judicial review, and the specific decisions under challenge, it is apposite to set out the legal framework under which the two planning applications the subject of the Board's decisions dated 15th February, 2017 came before the Board.

4 The background can only really be understood by reference to EU Directives in the environmental area which imposed obligations on Ireland to ensure that the decision-making process in the planning area included meaningful consideration of environmental issues. Council Directive 85/337/EEC (“the EIA Directive”) was promulgated to deal with the effects of public and private projects which were likely to have significant effects on the environment. It came into effect on 3rd July, 1988. This was later amended and ultimately codified in Directive 2011/92/EU, as amended by Directive 2014/52/EU. The EIA Directive sets out rigorous conditions in the area of environmental law, in particular the need to assess the environmental impact of developments as identified in annexes to the Directive.

5 The second Directive, Council Directive 92/43/EEC (the “Habitats Directive”), was adopted to promote the maintenance of biodiversity, taking account of economic, social, cultural and regional requirements. It came into force on 10th June, 1994. The within proceedings largely concern the EIA Directive.

6 The EIA Directive and its recitals require that in a development with environmental effects, such effects are to be taken into account at the earliest possible stage in the decision-making process for planning permission. Article 2(1) requires that an environmental impact assessment (“EIA”) should take place before consent is given.

7 The legislature, by virtue of the Planning and Development Act 2000 (hereinafter “the 2000 Act”), attempted to bring all quarries within planning control through s.261. Section 261, which commenced on 28th April, 2004, introduced an obligation for the owner or operator of a quarry to register the quarry with the relevant planning authority within one year of the coming into effect of the relevant Regulations. The quarry was then examined by the planning authority with a view to establishing its planning status and whether or not fresh conditions or a fresh application for planning permission was required. The quarry the subject of the within application was exempt from this requirement by reason of having obtained planning permission in February 2004, i.e. before the commencement of s.261.

8 In a judgment delivered on 3rd July, 2008 in the case Commission v. Ireland ( Case C-215/06) [2008] ECR 1-04911, the Court of Justice of the European Union (the “CJEU”) emphasised the meaning and effect of Article 2(1) of the EIA Directive. This Article stipulated that Member States were to adopt “all measures” necessary to ensure that before planning consent is given, projects likely to have significant effects on the environment, by their nature or location, were made subject to an EIA with regard to those effects. The CJEU accepted that the then Irish legislation required environmental impact assessments to be carried out and planning permission to be obtained as a general rule prior to the execution of works. It noted, however, that the Irish legislation also established the concept of “retention permission and equates its effects to those of the ordinary planning permission which precedes the carrying out of works and development. The former can be granted even though the project to which it relates and for which an environmental impact assessment is required pursuant to Articles 2 and 4 of Directive 85/337 as amended has been executed”. (at para. 55)

9 The CJEU went on to point out that, in the absence of exceptional circumstances, the grant of retention permission, which Ireland accepted as having been “common” in planning matters, had the result that the obligations imposed by the EIA Directive would be considered to have, in fact, been satisfied post hoc. While EU law could not preclude the applicable national rules from “in certain cases” allowing the regularisation of operations or measures which are unlawful under EU rules, such a possibility must not “offer the persons concerned the opportunity to circumvent the Community rules or to dispense with applying them, and that it should remain the exception”. (at para. 57). The CJEU highlighted the fact that a system of regularisation by retention permissions could have the effect of encouraging developers to forgo the process of ascertaining whether intended projects satisfied the criteria of Article 2(1) of the EIA Directive. (at para. 58)

10 To address the CJEU decision in Commission v Ireland, the 2000 Act was amended by:

(i) prohibiting retention permission in certain circumstances (s.34(12));

(ii) providing for a new species of permission described as “substitute consent” (Part XA); and

(iii) obliging planning authorities to examine and make decisions...