The High Court has refused An Taisce’s challenge to substitute planning consent for a quarry at Lemgare, Co Monaghan, ruling that the proceedings were brought out of time and amounted to an impermissible attack on an earlier decision.
Mr Justice Max Barrett delivered judgment on 17 May 2018. An Bord Pleanála granted substitute consent for the quarry on 25 April 2014. The case challenged that decision, but the court said An Taisce was in substance seeking to challenge the Board’s earlier decision, made on 28 May 2012, to allow the quarry operator to apply for substitute consent.
The 2012 decision could have been challenged within eight weeks. An Taisce did not bring a challenge during that period. Justice Barrett said the later consent could not have been granted without the earlier leave decision, and that the current case was an out-of-time collateral attack on it. He said no exceptional circumstances preventing a timely challenge had been pleaded.
The dispute followed an earlier planning process. Monaghan County Council granted permission for the quarry after an application in 2004. An Taisce appealed, but the Board granted permission in 2009. In 2010, the High Court quashed that decision because the Board had not considered whether the development was unauthorised. The operator later obtained leave to seek substitute consent under Part XA of the Planning and Development Act 2000.
An Taisce argued that the Board’s decision did not address European Union law or exceptional circumstances; that Irish law failed to ensure substitute consent was available only in exceptional circumstances; and that the retrospective assessment and remedial measures, including site restoration, were inadequate.
The judge considered those arguments despite his ruling on the time limit. He rejected the claimed failure to transpose EU law, finding that the statutory route at issue was consistent with the limits on regularising development described in the relevant case law. He also rejected the argument that retrospective consent was impermissible. The judgment said substitute consent was not automatic and that an application remained subject to environmental assessment and planning considerations.
The court also held that a general claim that the Board’s assessment was flawed was not a proper ground of judicial review. An Taisce had been invited to comment on the remedial environmental impact statement but had not raised its restoration concerns at that stage, the judge said, and could not raise them later.
Justice Barrett found no need to refer a question to the Court of Justice of the European Union. He declined all the relief sought, including the request to quash the 2014 consent. The judgment noted that the proceedings had delayed the legal certainty intended by the statutory eight-week challenge period.