Sweetman v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Mahon
• Judgment Date: 25 April 2016
• Neutral Citation: [2016] IECA 123
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal No.: 2015/286
• Date: 25 April 2016

[2016] IECA 123

THE COURT OF APPEAL

Mahon J.

Appeal No.: 2015/286

Ryan P.

Irvine J.

Mahon J.

Peter Sweetman

Applicant/Respondent to Appeal

- and -

An Bord Pleanála, Ireland

and

the Attorney General

Respondents/Appellants

- and -

Thomas Houstan

Notice Party

Planning and development ? Substituted consent ? Regularisation of developments ? Appellants seeking to strike out proceedings ? Whether the respondent?s case was properly first against the first appellant and in the alternative against the second and third appellants

Facts: The respondent, Mr Sweetman, was granted leave to apply by way of application for judicial review by Order of the High Court (Noonan J) on the 12th January, 2015, for: 1) an order of certiorari by way of application for a judicial review quashing the 4th November, 2014 decision of the first appellant, An Bord Pleanála, to grant a substituted consent in respect of a development comprising a quarry of lands at Croaghonagh, Ballybofey, Co. Donegal; and 2) a declaration that s. 261A and/or part XA of the Planning and Development Acts 2000/2010 is/are contrary to European Law. The involvement of the second and third appellants in these proceedings, Ireland and the Attorney General, arose because of the second relief. The appellants, by notice of motion dated the 19th March, 2015, applied to the High Court for: (1) an Order pursuant to either (i) ss. 50 and 50A of the 2000 Act, and/or (ii) Order 84 of the Rules of the Superior Courts striking out the proceedings insofar as the relief sought against Ireland and the Attorney General was concerned; (2) an Order pursuant to either (i) ss. 50 and 50A, and/or (ii) Order 84 striking out the relief sought at (d) of the respondent?s statement of grounds dated the 6th January, 2015 and the grounds pleaded at (e) 1, 2 and 16; (3) further or in the alternative an Order setting aside the grant of leave to apply for judicial review insofar as the relief sought at (d) 2 of the statement of grounds, and the grounds pleaded at (e) 1, 2 and 16 were concerned; (4) in the alternative, an Order directing the trial of a preliminary issue as to whether the respondent was entitled to pursue the relief sought at (d) 2 of the statement of grounds. On the 15th May, 2015,?the High Court (Hedigan J) noted that Mr Sweetman had no interest in challenging the 29th June, 2012 decision of Donegal County Council. Hedigan J noted that the subject of Mr Sweetman?s challenge was the substituted consent granted by?An Bord Pleanála?on the 4th November, 2014 to the third party developer. Hedigan J made that finding on the basis that?An Bord Pleanála?was the body which granted or withheld substituted consent. Hedigan J found that the role of Donegal County Council was in effect a box ticking role, namely its obligation was to identify, having regard to specific criteria, quarries which were required to apply to?An Bord Pleanála?for substitute consent. Hedigan J found that the decision to grant or refuse substitute consent and the procedures adopted by the board in reaching that determination, were part of the decision process of?An Bord Pleanála; it was not a process directed in any way by Donegal County Council. Hedigan J concluded that the respondent?s case was properly first against An Bord Pleanála and in the alternative against the State; it was not a collateral attack on the decision of Donegal County Council and so the issue of delay did not arise. Hedigan J refused the relief sought in the motion. The second and third appellants appealed to the Court of Appeal against the order of the High Court refusing their application to strike out the proceedings insofar as relief was sought against them. They maintained that Mr Sweetman was using the occasion of An Bord Pleanála?s decision to grant development consent as a means of launching a collateral attack on the decision of Donegal County Council and, more especially, the underlying legislation. It was contended that if Mr Sweetman?s proceedings constituted a collateral attack on the relevant legislative provisions (namely s. 261A and part XA of the 2000 Act), such was impermissible by virtue of ss. 50 and 50(A) of the 2000 Act.

Held by Mahon J that he agreed with the judgment of Hedigan J and his rationale for his decision.

Mahon J held that he would dismiss the appeal.

Appeal dismissed.

Judgment of Mr. Justice Mahon delivered on the 25th day of April 2016

1 Leave to apply by way of application for judicial review was granted by Order of the High Court (Noonan J.) on 12th January 2015 to Mr. Sweetman, (the Respondent in this appeal), for:-

1. An order of certiorari by way of application for a judicial review quashing the decision of the respondent to grant a substituted consent in respect of a development comprising a quarry of lands at Croaghonagh, Ballybofey, Co. Donegal (APB ref. SU05E.SU0027) which said decision was made on 4th November 2014.

2. A declaration that s. 261A and/or part XA of the Planning and Development Acts 2000/2010 is/are contrary to European Law. The involvement of the appellants (Ireland and the Attorney General) in these proceedings arises because of the relief claimed at no. 2 above, namely:

A declaration that s. 261A and/are part XA of the Planning and Development Acts 2000/2010 is/are contrary to European Law.

2 The grounds upon which the relief was sought numbered twenty in total. Those particularly relevant to this appeal are:-

(1) The respondent (An Bord Pleanála) has purported to grant substituted consent, being development consent for the purposes of the environmental impact assessment (EIA) Directive 85/337/EC as amended, in respect of a development that required EIA but which was carried out without such assessment having been conducted. This consent has been given without any assessment as to the existence of special circumstances or as to whether community law has been circumvented, contrary to the decision of the European Court of Justice in the case of The Commission v. Ireland ( Case 215/06). It is incumbent on the respondent to correct breaches of community law and it has failed to discharge this duty in the decision herein. Accordingly the said decision is contrary to law. There are no exceptional circumstances, and community law has been circumvented by the within grant of consent.

(2) In the alternative section 261A and/or part XA of the Planning and Development Act 2000 (PDA 2000) is contrary to European Law in that the said provisions provide for the granting of substituted consent without mandating any enquiry into the existence of special circumstances, or the circumvention of community law.

(3) The application for substituted consent is in respect of an operating quarry, no direction was given that the quarry cease operations and as such, the quarry was an ongoing development at the time of the within application. This is impermissible as a matter of National and European law. It is not possible to properly describe a development that is continuing as the base line environmental information keeps changing. Moreover, it is unclear what development is being permitted by the within consent. It is also entirely unclear what was being assessed by the board in its decision. The language in this regard is uncertain, and the board uses past, present and future tenses in the context of its assessment. This is contrary to law. No retention is sought for the continuing use and works, and it is unclear what development on the site is governed by the consent. This gives rise to significant uncertainty and the decision is void as a consequence.

(4 to 14) Criticisms of what was being assessed by An Bord Pleanála in relation to the grant of substituted consent, the manner in which it has been granted and the effect of such grant.

(5 to 20) Factual background information.

3 A Statement of Opposition on behalf of the second and third named respondents (Ireland and the Attorney General/The State), was filed on 19th March 2015. Essentially, their opposition is set out in para. 1 of their Preliminary Objection. It states:-

?The within proceedings are inadmissible insofar as same seek to challenge the validity of the provisions of either s. 261(A) or part XA of the Planning and Developments Act 2000 (as amended). The decision which allowed the notice party to apply for ?substitute consent? was made by Dublin County Council in or about 29th June 2012. The applicant failed to institute judicial review proceedings seeking to challenge that decision within either the statutory time limit prescribed under s. 50 and 50A of the PDA 2000 (as amended) or within the three month time limit prescribed under O. 84 of the Rules of the Superior Courts. If and insofar as the applicant wished to challenge the underlying legislation pursuant to which that decision was made, than judicial review proceedings should have been instituted within the prescribed time limits. Any such challenge is now time barred. The applicant is not entitled to rely on a decision of An Bord Pleanála made more than twenty nine months later, to launch a collateral attack on the earlier decision of Donegal County Council. The question of the notice party's entitlement to make an application for ?substitute consent? was determined conclusively by Dublin County Council, and is not re-visited as part of the application of ?substitute consent?.

4 The appellants, (the State), by notice of motion dated 19th March 2015, applied to the High Court for the following reliefs:-

(1) An Order pursuant to either:

(i) Sections 50 and 50A of the PDA 2000 (as amended, and/or

(ii) Order 84 of the Rules of the Superior Courts striking out the within proceedings insofar as the relief sought against Ireland and the Attorney General are concerned.

(2) An Order pursuant to either.

(i) Section 50 and 50A of the PDA 2000 (as amended, and/or...