Press Release - Friends of the Irish Environment 28th April 2021
High Court quashes last 8 of Bord na Mona’s ‘ghost’ planning applications
Lack of public consultation leads to quashing of 10 An Bord Pleanala consents
The High Court has quashed decisions of An Bord Pleanala to grant leave to apply for substitute consent, in respect of a number of peat extraction and quarry applications. The two-step, ‘substitute consent’ system, by which developers had to make ‘threshold’ applications to regularise previous unauthorised activities before applying for planning permission, was found not to comply with the EIA Directive by the Supreme Court in July 2020 in cases brought by An Taisce, the National Trust, and Peter Sweetman in relation to a quarry in County Kildare.
In July 2020, Friends of the Irish Environment challenged 8 applications submitted to An Bord Pleanala by Bord na Mona. All these challenges were based on the fact that the Board’s decisions to grant leave to apply for substitute consent were made without public consultation at this first ‘threshold’ application stage. The impugned decisions were made subsequent to the Supreme Court ruling but before the legislation was amended in December 2020.
The procedure which applied until new legislative provisions were introduced in December 2020, to address the Supreme Court ruling, did not permit members of the public to participate or make submissions as to whether or not ‘exceptional circumstances’ existed that would allow leave be granted in order to regularise the planning status of a development carried out without EIA.
The Supreme Court highlighted the issue thus:
‘It must be remembered that the underlying purpose of public participation in environmental matters is to facilitate good, fully informed decision making, it being acknowledged that the public as a whole is one of the greatest repositories of environmental information.’
While it was ‘common case’ that the decisions were invalid, the issue before Mr Justice Simons was whether the Court should make an order of certiorari, setting aside the impugned decisions or in the alternative an order declaring that the impugned decisions have no legal effect.
In opening his ex tempore Judgment delivered on 23 April and due to be published today, High Court Judge Garrett Simons said ‘Ultimately, however, I cannot discern any logic to the overly nuanced approach adopted by the State respondents and An Bord Pleanála. It seems to me that the Applicants brought a case that was well founded, and they are entitled to an order of certiorari.’
‘The subtlety and sophistication of this distinction is one which would be lost on all save the most pedantic of administrative lawyers’. He added. ‘The distinction between the form of the two orders is razor thin’.
Summarizing his decision, Justice Simons pointed out that ‘this court as a national court is required to give effect to the EIA Directive. That is clearly established in the case law of the Court of Justice, commencing with Case C-201/01, Wells. It seems to me that the only way that that can properly be done in this case is to make an order of certiorari.’
Finally, he suggested that it was a ‘nice question of law’ if the invalid decisions became reanimated and valid once the new legislation was enacted on 19 December 2020.
Suggesting that if the matter came before him ‘it might well be appropriate to make a reference to the EU Court of Justice, he pointed out that ‘One thing the parties are agreed on is that they do not want this Court in these proceedings to embark upon such a consideration of the new legislative regime. In circumstances where no one wants me to do otherwise, and where it does not form part of the pleadings before me, I will not rule on the validity of the new legislation’, he concluded.
Contact: Tony Lowes 353 (0)87 2176316 / 353 (0)27 74771
The judgment did not cover two applications where it is not yet apparent whether there will be a subsequent application for development consent. They have been adjourned, with liberty to re-enter.
 An order of certiorari: ‘Quashing’ or ‘setting aside’ a decision.
 Declaratory Relief: A declaration that the impugned decisions should be declared to have no legal effect, but not set aside.
 IEHC 234
2020 No.’s 485 to 491 J.R.
2020 No. 418 J.R.
2020 No.’s 539 & 540 J.R.
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