Sweetman v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: the Chief Justice
• Judgment Date: 23 January 2018
• Neutral Citation: [2018] IESC 1
• Court: Supreme Court
• Docket Number: Record No. 67/2016,[S.C. No. 67 of 2016]
• Date: 23 January 2018

[2018] IESC 1

THE SUPREME COURT

Clarke C.J.

Clarke C.J.

O'Donnell Donal J.

MacMenamin J.

Dunne J.

O'Malley Iseult J.

Record No. 67/2016

Between/

Peter Sweetman

Applicant/Respondent

and

An Bord Pleanala

Respondent

And

Ireland

and

the Attorney General

Respondents/Appellants

And

Thomas Houston

Notice Party

And

An Taisce

Amicus Curiae

Planning and development - Existing developments - Substituted consent - Development of quarry - European law - Planning and Development Act 2000

Facts: The first appellant had granted substituted consent to the development of a quarry in Co. Donegal. The grant followed the introduction of the substituted consent scheme following the finding that the former system of retention permission was contrary to EU law. The respondent sought to challenge the consent decision, and the High Court had refused the State bodies' application to halt that challenge. The Court of Appeal had agreed with the High Court and the matter now came on appeal to the Supreme Court.

Held by Clarke CJ, the other Justices concurring, that the appeal would be dismissed. The Court considered the provisions of the 2000 Act and the CJEU jurisprudence applicable, and the concept of collateral attack in administrative proceedings. In the instant case, the Court was not persuaded that an earlier decision was final and definitively clear as to render the respondent's challenge an impermissible collateral challenge.

The Court of Appeal's decision that the matter should proceed to resolve the substantive issues would therefore stand.

Judgment of the Chief Justice delivered the 23rd January 2018

1. Introduction

1.1 The former system of retention permission given for existing developments which had been carried out without an appropriate planning permission was found to be inconsistent with European law. As a result, a new system of substituted consent was introduced. It will be necessary to say a little more about that system in due course. But in general terms there are a number of so-called 'gateways' under which a party may enter the system for the grant of a substituted consent, with a final determination being made by the first named respondent ('the Board').

1.2 What is at issue in the underlying proceedings is the validity of a substituted consent decision made by the Board on the 4th November 2014. The consent in question related to the development of a quarry at lands in Co. Donegal. The plaintiff/respondent ('Mr. Sweetman') sought two alternative remedies. What can, I think, properly be described as the primary focus of his challenge related to the question of whether the Board was required, as part of its consideration, to assess whether 'exceptional circumstances', as that term is used in the jurisprudence of the Court of Justice in this area, could be shown to exist. The backdrop to that argument is that the 'gateway' to an assessment by the Board in a case such as this involves an initial decision by the relevant local authority (in this case Donegal Co. Council) which, if positive, permits the matter, in circumstances which it will be necessary to set out in more detail, to go to the Board. There is thus an initial determination by the relevant local authority and a further determination by the Board.

1.3 However, as a fallback, Mr. Sweetman sought to argue that, in the event that the legislation in question, properly construed, did not place an obligation on the Board to consider exceptional circumstances, it followed that the overall consent process was contrary to European law.

1.4 The proceedings, therefore, raise important questions. However, the appeal which is currently before this Court is more narrowly focused and for that reason it is not necessary to address the underlying issues in quite the same level of detail as might otherwise be the case.

1.5 In any event, the second and third named respondents/appellants ('the State') brought an application before the High Court which sought to suggest that Mr. Sweetman's challenge to the decision of the Board amounted to an impermissible collateral challenge to the earlier decision of Donegal Co. Council, which challenge had been brought it was said, at a time which was well outside the period during which such a challenge was required to be initiated. The High Court (Hedigan J.) ( Sweetman v. An Bord Pleanála & ors [2015] IEHC 285) disagreed and dismissed the State's application. From that decision the State appealed to the Court of Appeal. For the reasons set out in a judgment of Mahon J. ( Sweetman v. An Bord Pleanála & ors [2015] IECA 123) the Court of Appeal agreed with the High Court and dismissed the appeal.

1.6 The State sought and obtained leave to appeal to this Court from that decision of Mahon J. In its Determination ( Sweetman v. An Bord Pleanála Ireland & ors [2016] IESCDET 92) this Court identified the following issues or grounds as meeting the constitutional threshold for leave to appeal:-

'(a) [Whether], having regard to the provisions of the Planning and Development Acts, 2000-2010, and having regard to the events and circumstances involved in this case, it can properly be said that the challenge brought on behalf of Mr. Sweetman to the decision of the Board amounted to a collateral challenge to the earlier decision of Donegal County Council; and

(b) whether, in the light of the determination on issue (a), the decision of the Court of Appeal to refuse to dismiss Mr. Sweetman's application as against the State should be overturned.'

1.7 It will be necessary to return to certain aspects of those issues or grounds in due course. However, an appropriate starting point must be a brief account of the relevant procedural history of these proceedings.

2. Procedural History

2.1 Mr. Sweetman sought to quash a decision of the Board made on the 4th November 2014 which granted substituted consent in respect of the development of a quarry at lands in Co. Donegal. Mr. Sweetman also sought in the alternative a declaration that s. 261A and/or Part XA of the Planning Development Acts 2000/2010 are contrary to European law.

2.2 On the 19th March 2015, the State filed a notice of opposition, asserting amongst other things that Mr. Sweetman's judicial review application was inadmissible on the basis that the decision which allowed the Board to grant substituted consent was made by Donegal County Council in or about the 29th June 2012. Therefore, it was contended, Mr. Sweetman failed to institute judicial review proceedings challenging that decision within the relevant statutory timeframe or within the timeframe specified in the Rules of the Superior Courts. The State argued that by seeking to quash the granting of substituted consent by the Board, Mr. Sweetman was engaging in an impermissible collateral attack on the earlier decision of Donegal County Council. The State argued that such an attack was time-barred. In that context the State brought an application seeking to strike out the proceedings insofar as they sought to challenge the relevant legislation.

2.3 In response to the State's application, Mr. Sweetman stated in a replying affidavit that he considered that Donegal County Council had acted in accordance with the relevant statutory requirements, which will be considered below, and that he had no grounds to challenge that decision. Mr. Sweetman further argued that he was not seeking to bring a collateral challenge to that decision of Donegal County Council, as he was contending that it was the decision by the Board to grant substituted consent which was contrary to European law. On that basis he argued that his challenge was properly brought against the decision of the Board.

2.4 In order fully to understand the way in which the High Court and the Court of Appeal addressed the issue which was before them it is necessary to set out the legal framework relevant to these proceedings in a little more detail. I therefore turn to that legal framework.

3. Legal Framework

3.1 The current regime for applying for substituted consent is set out in the Planning and Development Act 2000 ('the 2000 Act'), as amended by the Planning and Development (Amendment) Act 2010 ('the 2010 Act'). However, it is worth first briefly setting out the previous system of retention permission which was discussed by the CJEU in Commission v. Ireland ( Case C-215/06) [2008] E.C.R. I-04911, where it was held that the then system of retention permission was not in compliance with the requirements of Directive 85/337 ('the Directive'). The 2000 Act, prior to its amendment in 2010, included measures on the part of the State intended to implement the requirements of the Directive which, broadly speaking, requires that environmental impact assessments be carried out in relation to certain developments prior to their commencement. The CJEU in Commission v. Ireland stated that the fundamental objective of the Directive 'is that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location should be made subject to a requirement for development consent and an assessment with regard to their effects.'

3.2 The Court noted that, as a general rule, the 2000 Act required that environmental impact assessments and planning permissions had to be respectively carried out and obtained prior to the execution of relevant works. It further noted:-

'55 However, it is also undisputed that the Irish legislation establishes 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.

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