Shillelagh Quarries Ltd v an Bord Pleanála

JurisdictionIreland
JudgeMr. Justice David Barniville
Judgment Date11 June 2019
Neutral Citation[2019] IEHC 479
CourtHigh Court
Docket Number[2017/542 J.R.]
Date11 June 2019
BETWEEN
SHILLELAGH QUARRIES LIMITED
APPLICANT
AND
AN BORD PLEANÁLA
RESPONDENT
AND
RACHEL MCCOY (AS PERSONAL REPRESENTATIVE OF THE ESTATE OF MICHAEL MCCOY), (DECEASED)
NOTICE PARTY

[2019] IEHC 479

Barniville J.

[2017/542 J.R.]

THE HIGH COURT

COMMERCIAL

JUDICIAL REVIEW

Judicial review – Substitute consent – Planning and development – Applicant seeking an order of certiorari quashing the decision of the respondent in which it refused to grant the applicant leave to apply for substitute consent – Whether the respondent misinterpreted and misapplied the provisions of s. 261A(24)(a) of the Planning and Development Act 2000

Facts: The applicant, Shillelagh Quarries Ltd, applied to the High Court seeking an order of certiorari by way of judicial review quashing the decision of the respondent, An Bord Pleanála (the Board), dated 18th May, 2017 in which the Board refused to grant the applicant leave under s. 261A(24)(a) of the Planning and Development Act 2000 to apply for substitute consent pursuant to s. 177C of the 2000 Act. The applicant also sought an order remitting its application for leave to apply for substitute consent to the Board to be determined in accordance with law. The applicant’s challenge to the Board’s decision was advanced on a number of grounds but principally on the ground that the Board misinterpreted and misapplied the provisions of s. 261A(24)(a) of the 2000 Act in refusing to hold that the quarry had “commenced operation” before 1st October, 1964.

Held by Barniville J that the Board did not misinterpret or misapply the provisions of s. 261A(24) of the 2000 Act in refusing to grant leave to the applicant to apply for substitute consent in respect of the quarry. On the contrary, he concluded that the Board correctly interpreted and applied those provisions to the applicant’s application. He reached that conclusion based on what he had found to be the correct interpretation of the provision in the context of the framework and scheme of the legislation as well as the well-established case law of the superior courts. He concluded that it would be most unsatisfactory if the words “commenced operation” in the context of a quarry used in s. 261A(24)(a)(i) were to be interpreted differently to the way in which those words and similar statutory phrases in the Local Government (Planning and Development) Act 1963 and in the 2000 Act have been interpreted. He further concluded that the interpretation adopted by the Board was compatible with and conformed to the views and approach taken by the CJEU in Case C-215/06 Commission v Ireland [2008] ECR I-04911 and in its subsequent jurisprudence and that the interpretation advanced by the applicant would not be compatible with or conform to EU law. He also rejected the applicant’s contention that the Board took into account irrelevant considerations in reaching its decision and rejected the other various grounds of challenge mounted by the applicant to the Board’s decision. He concluded that the Board was fully aware of and took into account the findings contained in previous decisions of the High Court in relation to the quarry. He concluded that the Board was not prevented from reaching the decision it took by reason of the provisions of s. 261(7)(e) of the 2000 Act as applied by Baker J in the High Court in McCoy v Shillelagh Quarries Ltd [2015] IEHC 838. Finally, he concluded that while the Board Order recording the decision of the Board contained some typographical errors, they were minor, harmless, insubstantial and inconsequential and did not in any way mislead or prejudice the applicant or its advisors; the Board Order made clear what the Board was deciding and the statutory basis on which that decision was made.

Barniville J held that, in those circumstances, he would refuse the applicant’s application for judicial review in respect of the Board’s decision and dismiss the proceedings.

Application refused.

JUDGMENT of Mr. Justice David Barniville delivered on the 11th day of June, 2019
The proceedings
1

In these proceedings the applicant, Shillelagh Quarries Limited, seeks an order of certiorari by way of judicial review quashing the decision of the respondent, An Bord Pleanála (the ‘Board’) dated 18th May, 2017 in which the Board refused to grant the applicant leave under s.261A(24)(a) of the Planning and Development Act, 2000 (as amended) (the ‘2000 Act (as amended)’), to apply for substitute consent pursuant to s.177C of the 2000 Act (as amended). The applicant also seeks an order remitting its application for leave to apply for substitute consent to the Board to be determined in accordance with law.

Introductory Remarks
2

This case is the most recent of several cases which have come before the courts in relation to a quarry operated by the applicant, at Aghfarrell, Brittas, County Dublin. The applicant seeks to challenge the decision of the Board in which the Board refused to grant the applicant leave to apply to the Board for substitute consent under s. 261A(24)(a) of the 2000 Act (as amended). Substitute consent is a form of retention permission introduced into Irish law in 2011 under amendments to the Planning and Development Act, 2000 made by the Planning and Development (Amendment) Act, 2010 following the well-known decision of the Court of Justice of the European Union in Case C-215/06 Commission v. Ireland [2008] ECR I-04911 (‘ Case C-215/06’).

3

The applicant's challenge to the Board's decision is advanced on a number of grounds but principally on the ground that the Board misinterpreted and misapplied the provisions of s. 261A(24)(a) of the 2000 Act (as amended) in refusing to hold that the quarry had ‘commenced operation’ before 1st October, 1964. At the heart of the case is the correct interpretation and application of that subsection of s. 261A. However, having regard to the lengthy planning and legal history of the quarry and the numerous legal challenges and proceedings involving the quarry, it will be necessary to spend some time putting the current controversy which has led to this case in its proper context.

4

The lengthy planning and legal history of the quarry and the complications which it has thrown up have been compounded by what commentators have described as the ‘ exceptionally complicated [nature]’ (Niall Handy, “Substitute Consent: The New Form of Retention Permission for EIA Development” (2011) 18 IPELJ 15) and the ‘ labyrinthine complexity’ (Oran Doyle, “Elusive Quarries: A Failure of Regulation” (2011) 34(2) DULJ 180-207 at 180) of the legislative provisions relating to quarries which have been the subject of numerous amendments since 2000. In a very recent judgment of the Supreme Court, An Taisce v. McTigue Quarries Limited & Ors [2018] IESC 54 (‘ McTigue’), MacMenamin J. who gave the judgment of the court, pithily observed:-

‘The Planning and Development Acts have been the subject of many judgments of this and other courts. In one, O'Connell v. The Environmental Protection Agency and Ors [2003] 1 IR 530, Fennelly J. described the legislation then as being a “statutory maze” (at p. 533). One scholar later described the Acts in 2011 as being a “conceptual morass” (Oran Doyle, ‘Elusive Quarries: A Failure of Recognition’ (2011) 34(2) DULJ 180, 197-208). There have been countless further amendments since then. It is not unfair to comment that the present state of the legislation is an untidy patchwork confusing almost to the point of being impenetrable to the public. This is in an area where, of its nature, legislation is supposed to have a strong public participation aspect. Confused legislation engenders litigation which, in turn, causes delays in lawful developments, including infrastructure. The entire subject matter requires urgent codification (See, generally, Doyle op.cit.).’ (per MacMenamin J. at para. 28).

5

I echo and completely agree with those observations. If anything, the position has become even more complex and confusing by the still further amendments to the legislation and, in particular, to s. 261A of the 2000 Act (as amended), which the Supreme Court did not have to consider in McTigue but which do arise for consideration in this case.

Summary of Conclusions
6

For reasons which I have set out in some detail in this judgment, I have concluded that the Board did not misinterpret or misapply the provisions of s. 261A(24) of the 2000 Act (as amended) as contended by the applicant. I have concluded that on the contrary, the Board correctly interpreted and applied that provision to the applicant's application for leave to seek substituted consent in respect of the quarry.

7

I have concluded that the interpretation of those provisions adopted by the Board is much more consistent with the statutory framework and scheme of part XA and s. 261A of the 2000 Act (as amended), as well as with the specific provisions of s. 261A(24)(a) which are directly in issue in the present case, and with the well-established case law of the High Court and Supreme Court. I have concluded that it would be most unsatisfactory if the statutory words at issue in s.261A(24) (namely, the requirements that the quarry had to have ‘commenced operation’ before 1st October, 1964) were to be interpreted differently to the manner in which those or similar words, as used in other sections in the 2000 Act (as amended) and in earlier legislation have been interpreted.

8

I have further concluded that the interpretation of s. 261A(24)(a) adopted and applied by the Board is one which conforms to the views of, and the approach taken, by the CJEU in Case C-215/06 and that the interpretation put forward by the applicant in its challenge to the Board's decision would not conform to the views expressed by the CJEU in its judgment in that case and in subsequent judgments which it has delivered in this field. Nor am I satisfied that the applicant has put forward any other...

To continue reading

Request your trial
4 cases
  • Flood & Sons (manufacturing) Ltd v an Bord Pleanala
    • Ireland
    • High Court
    • 20 Abril 2020
    ...382, An Taisce v. Ireland [2010] IEHC 415, Hayes & Ors v. An Bord Pleanála [2018] IEHC 338, and Shillelagh Quarries v. An Bord Pleanála [2019] IEHC 479. 15 It may also be noted that EU law has its own concepts and terminology in this area, and prominent among them are those of “a project” a......
  • Shillelagh Quarries Ltd v an Bord Pleanála
    • Ireland
    • High Court
    • 24 Enero 2020
    ...for judicial review in respect of the Board's decision (the “principal judgment”). The principal judgment bears the neutral citation [2019] IEHC 479. 6 At para. 71 of the principal judgment, I identified the various issues which it was necessary for me to decide. Among those issues were:- (......
  • Moore v an Bord Pleanala
    • Ireland
    • High Court
    • 4 Diciembre 2020
    ...rule contrary to an EU rule. This is of significance in the instant proceedings. 42 In Shillelagh Quarries Limited v. An Bord Pleanála [2019] IEHC 479, (Barniville J.) delivered on the 11th of June, 2019, the Court cited, approved, and applied existing jurisprudence, Patterson v. Murphy [19......
  • Barford Holdings Ltd v Fingal County Council
    • Ireland
    • High Court
    • 26 Abril 2022
    ...the errors in this case may properly be compared to those assessed by the Court in Shillelagh Quarries Ltd. v. An Bord Pleanála & ors [2019] IEHC 479, an authority urged on the Court by the respondent. In that case Barniville J. considered a challenge to a decision of An Bord Pleanála on th......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT