'Substitute consent' planning scheme is inconsistent with EU law, Supreme Court rules

In a decision with major implications, the Supreme Court has declared the 'substitute consent' procedure in Irish planning law is inconsistent with the European Impact Assessment Directive.
'Substitute consent' planning scheme is inconsistent with EU law, Supreme Court rules
File image.
File image.

In a decision with major implications, the Supreme Court has declared the 'substitute consent' procedure in Irish planning law is inconsistent with the European Impact Assessment Directive.

The substitute consent procedure is inconsistent with the EIA directive because it does not provide for public participation at the stage of leave to apply for substitute consent and does not provide for an "exceptionality" test for substitute consent as demanded by the Court of Justice of the EU (CJEU), the five judge court declared.

The substitute consent scheme set out in Section 177 of the Planning and Development Act 2000, as amended in 2010, was part of Ireland's bid to rectify deficiencies identified by the CJEU in 2006 after the European Commission won proceedings against Ireland over the scheme of retention planning permission here.

The Supreme Court judgment was given on Wednesday on separate appeals by An Taisce and environmentalist Peter Sweetman concerning two quarries.

One appeal by An Taisce concerned An Bord Pleanála's decision to grant substitute consent in 2014 to J McQuaid Quarries Ltd for a quarry at Lemgare, Co Monaghan. That appeal was against the board, the State and the quarry company.

A second appeal by An Taisce concerned the board's refusal to accept submissions from it opposing Sharon Browne's application for leave to apply for substitute consent for a quarry at Ballysax, The Curragh, Co Kildare, owned and operated by her. Mr Sweetman also appealed the board's refusal to accept submissions from him.

The board said it could not lawfully accept the submissions because there was no law by which members of the public could make submissions at the leave stage of the substitute consent process, as opposed to the substantive stage of the process.

The Ballysax appeals were against the board and State with Ms Browne as a notice party.

The Supreme Court had agreed to hear all three appeals on grounds they raised issues of public importance with a large number of applications on hold pending the outcome.

In a 104-page detailed judgment delivered on Wednesday by Mr Justice William McKechnie, the court allowed the appeals.

The judge noted, in a 2006 judgment on a case by the European Commission against Ireland, the CJEU found the widespread availability of a retention planning permission here, even in respect of projects which required but did not have an EIA, was not consistent with the EIA directive.

The Oireachtas realised a number of operations fell into this category and sought to make rectification provisions which would comply with the directive, as outlined by the CJEU. Its response included the creation of the substitute consent regime via amendments, effected by the Planning and Development Amendment Act 2010, to the 2000 Act.

The "significant objective" was to render domestic law fully compliant with EU law and the amendments gave effect to several European Directives, including the EIA directive and the Habitats Directive.

The judge said these appeals raised important issues of EU law, including whether the State's response was adequate in upholding the requirements of the EIA directive.

The substitute consent provisions do not sufficiently implement the EIA directive in light of various decisions of the CJEU, he found.

The gateway to an application for substitute consent is not sufficiently compliant with the "exceptionality test" for a scheme for substitute consent as laid down repeatedly by the CJEU, he said. This was particularly so because, once leave to apply for substitute consent has been given, the exceptionality test "forms no part" of the decision on the substantive application for substitute consent.

The essential elements required for an application for leave for substitute consent, including the development at issue required an EIA, could not fairly be described as being exceptional and were rather "quite general and quite broad", he said.

Having considered the scope and meaning of the public right to participate under the directive, he also held the exclusion in domestic law of public participation at the stage of seeking leave to apply for substitute consent is inconsistent with the public participation rights conferred by the directive.

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