Substituted Planning Consent:  no longer a feasible option

An Taisce/ Peter Sweetman v An Bord Pleanala and J. McQuaid Quarries Limited

The judgment of the Supreme Court handed down on 1st July 2020 in the case of An Taisce/ Peter Sweetman v An Bord Pleanala and J. McQuaid Quarries Limited has an important knock-on effect for quarrying and peat extraction operations in Ireland. The case concerned the conduct of quarrying operations in two separate locations; one quarry was owned by J McQuaid Quarries in Co. Monaghan and the other by Ms. Sharon Brown in Co. Kildare. The judgment addressed the use of the “substituted consent” procedure under the Planning and Development Act, 2000 (as amended) (the “Act”) in light of EU law including the Environmental Impact Assessment (EIA) Directive 85/337 (as amended).

Before the judgment was handed down, the substitute consent procedure, which was a form of retrospective planning permission, was often adopted by owners of quarrying operations after the quarrying operations had commenced. It allowed the operator to be granted planning permission, in some cases, without filing an Environmental Impact Assessment (EIA) and the usual period of public notice and consultation. There are essentially two stages in a planning permission application in relation to a substitute consent regarding quarrying and similar operations.  The first step is a “leave to apply” stage in relation to which the Act does not provide for public participation (i.e. notice to or consultation with the public). At this stage the applicant must meet the “exceptionality test” and demonstrate exceptional circumstances that warrant leave to apply being granted. If the applicant is successful at this stage and leave to apply is granted, the second step is the “substantive application” for substitute consent at which notice is provided to the public which is entitled to make legal submissions in relation to the proposed planning permission. However, the exceptionality test, having previously been satisfied, is not part of the substantive application.

In this case, An Bord Pleanala ruled that it could not accept submissions from An Taisce at the leave to apply stage, the reason being that the Act did not expressly provide for this. In many cases success at the leave to apply stage is critical and if an applicant such as a quarry operator is granted leave to apply there is some prospect that the ultimate planning permission will be granted at the substantive hearing.

The Supreme Court found that the use of the substitute consent procedure was a retrospective regularisation and had to comply with EU law (including the EIA Directive). The Supreme Court held that this had to be the case “as otherwise developers may be incentivized to ignore or disregard the requirements of a prior consent/EIA: in other words, national measures cannot act as an inducement to avoid EIA Compliance…. Therefore, such regularisation must remain the exception, rather than the rule.” With this in mind the Supreme Court found that the Act did not sufficiently limit the circumstances to which the “exceptionality test” applied and it had therefore failed to comply with judgments of the European Court of Justice and failed to implement correctly the EIA Directive.

The second issue determined by the Supreme Court was whether members of the public have any right to participate in the application for leave to apply for substitute consent or whether instead such right is limited to the substantive application. The Court noted that the application for leave stage is not a mere box-ticking exercise rather it is a highly significant aspect of the overall process and issues such as exceptional circumstances and the circumvention of EU law are finally determined at the leave to apply application. Mr. Justice McKechnie ruled that the clear intent of the Oireachtas in framing the Act was that the public is not granted a right under the Act to make submissions at the application for leave stage and as a result public participation was limited to the substantive application. However, EU law including the EIA Directive, which takes precedence over Irish law, requires that the public be entitled to participate at the application for leave stage of the substitute consent procedure.  In this regard the Act was inconsistent with the EIA Directive.

The result is that the use of the substituted consent or retrospective regularisation in relation to retention planning permission regarding quarrying operations along with certain peat extraction operations has been severely restricted. Quarry operators should in future consult with their advisers at an early stage in order to consider issues in relation to planning permission before commencing quarrying operations.

Brendan Ringrose is a partner in Whitney Moore LLP Law Firm in Dublin and advises clients in the Minerals and Natural Resources Sectors. He is also a former group leader of the World Association of Mining Lawyers and has spoken at the Irish Mining Seminar at the Prospectors and Developers Association of Canada conference in Toronto, Canada. This article appeared in the Irish Mining and Quarrying Society Annual Review 2020.