Sweetman v an Bord Pleanála Ireland
| Jurisdiction | Ireland |
| Judge | Clarke J.,MacMenamin J.,Laffoy J. |
| Judgment Date | 29 June 2016 |
| Neutral Citation | [2016] IESCDET 92 |
| Judgment citation (vLex) | [2016] 6 JIC 2906 |
| Court | Supreme Court |
| Date | 29 June 2016 |
[2016] IESCDET 92
THE SUPREME COURT
DETERMINATION
Clarke J.
MacMenamin J.
Laffoy J.
IN THE MATTER OF SECTIONS 50 AND 50A OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED)
AND
This determination relates to an application by the second and third named respondents in the underlying proceedings (‘the State’) for leave to appeal, under Art. 34.5.3 of the Constitution, from a judgment of the Court of Appeal (Ryan P., Irvine J. and Mahon J.) delivered on 25 April, 2016. The order appealed against was made on 11 May, 2016 and perfected on 13 May, 2016. As is clear from the terms of the Constitution and many determinations made by this Court since the enactment of the 33rd Amendment it is necessary, in order for this Court since the enactment of the 33rd Amendment it is necessary, in order for this Court to grant, that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interest of justice necessary that there be an appeal to this Court
The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave a having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.
The applicant in the underlying proceedings (‘Mr. Sweetman’) sought to quash a decision of An Bórd Pleanála (‘the Board’), made on 4 November 2014, to grant a so-called substituted consent in relation to the development of a quarry at lands in Co. Donegal. What might be described as a fall back declaration that s.261A and/or part XA of the Planning and Development Acts 2000/2010 are contrary to European law was also sought. The State filed a notice of opposition which asserted that the decision which allowed an application for substituted consent was in fact made by Donegal County Council in June 2012. On the basis that judicial review proceedings challenging that decision had not been brought within the time limits prescribed in legislation or the Rules of the Superior Courts, it was said that the entitlement to seek ‘substitute consent’ was conclusively determined at that stage and could not be revisited. It followed, it was said, that the challenge to the relevant provisions of the legislation was an impermissible collateral attack on the decision of Donegal County Council as it was out of time. In that context an application was brought seeking to strike out the proceedings insofar as relief was sought against the State.
That matter came before Hedigan J. who found that the application for judicial review was not a collateral attack on the decision of Donegal County Council but rather was a direct challenge to the decision of An Bórd Pleanála of the 4th November 2014 in which substitute consent was granted to the developer.
The State appealed that decision to the Court of Appeal.
The judgment of the Court of Appeal was delivered on 25 April by Mahon J. As noted in that judgment the State again maintained that Mr. Sweetman was using the decision of the Board as a means of launching a collateral attack on the decision of Donegal County Council and, through that, the underlying legislation.
The substitute consent regime was introduced by Ireland to amend the retention permission regime which had been found incompatible with EU law in Commission v. Ireland [2008] (C-215/06). That new regime allowed for the regularisation of developments which ought to have had a prior environmental impact assessment in certain exceptional circumstances. As noted at para. 22 of the judgment, Mr. Sweetman's position was that:- ‘If Irish legislation does not require An Bórd Pleanála to consider these issues then the applicant will argue that Irish law is not in accord with EU law as cited above’. The Court of Appeal agreed with Hedigan J. that the case was properly characterised as one which was brought first against the Board and in the alternative against the...
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