Shillelagh Quarries Ltd v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice David Barniville
• Judgment Date: 24 January 2020
• Neutral Citation: [2020] IEHC 22
• Docket Number: [2017/542 J.R.]
• Court: High Court
• Date: 24 January 2020

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

[2020] IEHC 22

David Barniville J.

[2017/542 J.R.]

THE HIGH COURT

COMMERCIAL

JUDICIAL REVIEW

Judicial review – Substitute consent – Points of law of exceptional public importance – Applicant seeking leave to appeal to the Court of Appeal – Whether it was desirable in the public interest that an appeal should be taken

Facts: The applicant, Shillelagh Quarries Ltd, applied to the High Court for leave to appeal to the Court of Appeal pursuant to s. 50A (7) of the Planning and Development Act 2000 (as amended) from a decision made by the High Court in a judgment delivered on 12th June, 2019 in which Barniville J refused the applicant’s application for judicial review in respect of a decision of the respondent, An Bord Pleanála, dated 18th May, 2017. In its decision, the Board had refused to grant the applicant leave under s. 261A (24) (a) of the 2000 Act (as amended) to apply for substitute consent in respect of the applicant’s quarry under s. 177C of the Act. The applicant contended that leave to appeal should be granted on the basis of two points or questions which it said involve points of law of exceptional public importance and in respect of which the applicant said it was desirable in the public interest that an appeal should be taken to the Court of Appeal. Those questions were as follows: “(1) What is the true construction of the phrase ‘the quarry commenced operation before 1 October 1964’ contained in section 261A(24)(a)(i)(I) of the 2000 Act (as amended)? (2) What is the true scope and application of the court’s jurisdiction to quash an administrative decision on grounds of an error on the face of the record?”

Held by Barniville J that he was not satisfied that either of the points or questions put forward by the applicant involved points of law of exceptional public importance arising from the decision contained in the principal judgment. Nor was he satisfied that it was desirable in the public interest that an appeal should be taken to the Court of Appeal from that decision. On the contrary, he had concluded that it would not be desirable in the public interest that such an appeal should be brought. In those circumstances, he held that the cumulative requirements contained in s. 50A (7) of the 2000 Act (as amended) had not been satisfied by the applicant.

Barniville J held that the applicant’s application for leave to appeal would be refused.

Application refused.

JUDGMENT of Mr. Justice David Barniville delivered on the 24th day of January, 2020

Introduction

1 This is my judgment on an application by the applicant for leave to appeal to the Court of Appeal pursuant to s. 50A(7) of the Planning and Development Act, 2000 (as amended) (the “2000 Act (as amended)”) from a decision made by me in a judgment delivered on 12th June, 2019 in which I refused the applicant's application for judicial review in respect of a decision of the respondent, An Bord Pleanála (the “Board”) dated 18th May, 2017. In its decision, the Board had refused to grant the applicant leave under s. 261A(24)(a) of the 2000 Act (as amended) to apply for substitute consent in respect of the applicant's quarry under s.177C of the Act.

2 The applicant contends that leave to appeal should be granted on the basis of two points or questions which it says involve points of law of exceptional public importance and in respect of which the applicant says it is desirable in the public interest that an appeal should be taken to the Court of Appeal.

3 For the reasons set out in this judgment, I have concluded that the applicant has not established that my decision involves a point or points of law of exceptional public importance or that it is desirable in the public interest that an appeal should be taken from my decision to the Court of Appeal. Therefore, I refuse the applicant's application for leave to appeal.

Points of law raised by the applicant

4 The applicant has put forward two points or questions which it has asked the court to certify as being points of law of exceptional public importance, which it is desirable in the public interest should be taken by way of appeal to the Court of Appeal. Those questions are as follows:-

“(1) What is the true construction of the phrase ‘the quarry commenced operation before 1 October 1964’ contained in section 261A(24)(a)(i)(I) of the 2000 Act (as amended)?

(2) What is the true scope and application of the court's jurisdiction to quash an administrative decision on grounds of an error on the face of the record?”

The principal judgment

General

5 Before considering the provisions of s. 50A(7) of the 2000 Act (as amended) and the legal principles applicable to the applicant's application for leave to appeal, I should make reference to some aspects of the judgment which I gave on 12th June, 2019, on the applicant's application 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:-

(1) Whether the Board had correctly interpreted and applied the provisions of s. 261A(24)(a)(i)(I) of the 2000 Act (as amended) in reaching its conclusion that the applicant's quarry had not “commenced operation” before 1st October, 1964; and

(2) Whether the errors contained in the decision of the Board, which is recorded in the Board Order of 18th May, 2017, were such as to require that decision to be quashed.

7 The points or questions advanced by the applicant in its application for leave to appeal are intended to address the conclusions which I reached in the principal judgment on these two issues.

Interpretation of relevant statutory provision

8 I dealt with the question of the correct interpretation (and application) of s. 261A(24)(a)(i)(I) of the 2000 Act (as amended) at paras. 73 to 154 of the principal judgment.

9 I approached the question of the interpretation of that provision from various perspectives. First, I considered the terms of the provision itself (paras. 74 to 80 and paras. 93 to 94 of the principal judgment). Second, I considered the statutory framework and scheme into which ss. 261A(21)-(24) were inserted, with effect from 22nd July, 2015 (as discussed and considered by the Supreme Court in Sweetman v. An Bord Pleanála [2018] IESC 1 ( “ Sweetman”) and An Taisce v. McTigue Quarries Limited & ors [2018] IESC 54 ( “McTigue”)) (paras. 81 to 92 of the principal judgment). In that context, I considered the various “gateways” under which leave to apply for substitute consent, or substitute consent itself, could be obtained and noted that a new “gateway” was provided for under ss. 261A(21)-(24), with effect from 22nd July, 2015. I considered the particular circumstances which that new “gateway” was intended to address. One of the requirements to be met in order to avail of that “gateway” was that the quarry had to have “commenced operation” before 1st October, 1964.

10 Third, I considered the European context in which the provisions of ss. 261A(21) – (24) must be seen (paras. 95 to 105). In that context, I considered the judgment of the CJEU in Case C-215/06 Commission v. Ireland [2008] ECR I-04911 ( “ Case C-215/06”) and the subsequent judgment of the CJEU in Joined Cases C-196/16 and C-197/16 Comune di Corridonia and Ors v. Provincia di Macerata (judgment given on 26th July, 2017) (“Joined Cases C-196/16 and C-197/16”) and the consideration given to those cases by the Supreme Court in Sweetman and McTigue.

11 I particularly noted the comments of Clarke C.J. at paras. 7.6 and 7.7 of his judgment for the Supreme Court in Sweetman. At para. 7.6, he noted that the jurisprudence of the CJEU “makes clear that what is described as a system of regularisation in the environmental context is permissible but only where the system ‘does not offer the persons concerned the opportunity to circumvent the Community rules … and that it should remain the exception’. He further noted that the CJEU had held that the previous Irish system of retention permission, which the CJEU observed “could be issued even where no exceptional circumstances are proved”, was found to be inconsistent with European law. At para. 7.7, Clarke C.J. observed that the validity of any scheme for obtaining retrospective consent, including the substitute consent procedure under the 2000 Act (as amended), in order to be compatible with European law, could “not operate as a facilitation or encouragement to circumvention of Union rules and can only operate in exceptional circumstances”.

12 I noted that the Supreme Court in McTigue considered the overall framework and scheme of the 2000 Act (as amended) and observed that the words used in the section at issue in that case were “consistent only with a legislative intention to comply with the EIA Directive” and were “not consistent with a literal interpretation which would permit the quarry continuing in operation without appropriate conditions as to that operation for perhaps years to come” (per MacMenamin J. at para. 72). The Supreme Court held that the literal interpretation of the section at issue in that case (s. 1770) would not reflect the plain intention of the Oireachtas as ascertained from the Act as a whole, which was to give effect to the EIA Directive. In that context, I noted that the judgment of the Supreme Court in McTigue was significant as it highlighted the importance of carefully considering not only the actual words of the section of the 2000 Act (as amended) which had to be construed, but also the critical importance of the framework and scheme of the legislation as well as the European...