An Taisce v An Bord Pleanala, An Taisce v An Bord Pleanala & Ors, Sweetman v An Bord Pleanala & Ors (Approved) [2020] IESC 39 (01 July 2020)

An Taisce v An Bord Pleanala, An Taisce v An Bord Pleanala & Ors, Sweetman v An Bord Pleanala & Ors (Approved) [2020] IESC 39 (01 July 2020)

The Supreme Court held that the Irish substitute consent regime, as structured, does not in all cases ensure that retrospective consent is granted only in exceptional circumstances as required by the EIA Directive and CJEU jurisprudence. The Court found that the legislative scheme must be interpreted and applied in conformity with EU law, requiring the Board to consider whether exceptional circumstances exist before granting substitute consent, even where not expressly mandated by the national statute. The Court also held that public participation at the substantive application stage satisfies the requirements of the Directive, and that the doctrine of collateral attack and statutory time...

Citation
[2020] IESC 39
Parties
Applicant/appellant: An Taisce; Respondent: An Bord Pleanála; Respondent: J. McQuaid Quarries Limited; Respondent: Ireland and the Attorney General; Notice Party: Sharon Browne; Applicant/appellant: Peter Sweetman
Jurisdiction
Ireland
Judgment Date
01 July 2020
Procedural Posture
Joined Appeals From Judicial Review of Planning Decisions / Supreme Court Judgment on Appeal
Outcome
Appeals allowed in part; substitute consent regime must be interpreted to require consideration of exceptional circumstances in all cases; public participation requirements satisfied at substantive stage; collateral attack doctrine generally applies but subject to EU law.
Legal Topics
Environmental Impact Assessment (eia) Directive Compliance, Retrospective Planning Permission, Substitute Consent Procedure, Public Participation in Planning, Collateral Attack Doctrine, Time Limits for Judicial Review
Planning and Environmental Law European Union Law Administrative Law Environmental Impact Assessment (eia) Directive Compliance Retrospective Planning Permission Substitute Consent Procedure Public Participation in Planning Collateral Attack Doctrine +1 more

Case Brief

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Parties

An Taisce

Applicant/appellant

An Bord Pleanála

Respondent

J. McQuaid Quarries Limited

Respondent

Ireland and the Attorney General

Respondent

Sharon Browne

Notice Party

Peter Sweetman

Applicant/appellant

Procedural Posture

Joined Appeals From Judicial Review of Planning Decisions / Supreme Court Judgment on Appeal

Legal Issues

  1. 1 Whether Ireland's substitute consent regime under the Planning and Development Act 2000 (as amended) is compatible with the EIA Directive, particularly regarding the requirement that retrospective consent be exceptional and not circumvent EU law.
  2. 2 Whether the public has a right to participate at the 'leave' stage of substitute consent applications.
  3. 3 Whether a challenge to the grant of substitute consent constitutes an impermissible collateral attack on an earlier leave decision, in light of EU law.

Ratio Decidendi

The Supreme Court held that the Irish substitute consent regime, as structured, does not in all cases ensure that retrospective consent is granted only in exceptional circumstances as required by the EIA Directive and CJEU jurisprudence. The Court found that the legislative scheme must be interpreted and applied in conformity with EU law, requiring the Board to consider whether exceptional circumstances exist before granting substitute consent, even where not expressly mandated by the national statute. The Court also held that public participation at the substantive application stage satisfies the requirements of the Directive, and that the doctrine of collateral attack and statutory time...

Court Disposition

Appeals allowed in part; substitute consent regime must be interpreted to require consideration of exceptional circumstances in all cases; public participation requirements satisfied at substantive stage; collateral attack doctrine generally applies but subject to EU law.

Orders

  • Decision to grant substitute consent quashed where exceptional circumstances not considered.
  • Remitted to An Bord Pleanála for reconsideration in accordance with the judgment.