The High Court has refused East Coast Transport Limited’s challenge to An Bord Pleanála’s refusal of substitute consent for its quarry in County Wicklow, leaving the board’s decision in place.
In a judgment delivered on 18 December 2019, Ms Justice O’Regan dismissed the company’s judicial review application. The company had sought to quash the board’s decision of 2 February 2016 and prevent Wicklow County Council from serving an enforcement notice while the case was before the court. The council was joined for that limited purpose and did not take part in the substantive proceedings.
The quarry is at Ballinabarney North and Bolagh South, near Redcross. The company applied for substitute consent in 2014 for development covering 20.1584 hectares. The application required a remedial environmental impact statement (rEIS), which the board assessed before refusing consent.
The board said the rEIS did not adequately address cumulative effects or alternatives, and lacked sufficient historic and current information about key impacts, particularly on water resources, hydrology and the aquatic environment. It was not satisfied that the development had not caused significant adverse environmental effects.
The company argued that the board should have sought further information before refusing consent, including under planning legislation provisions it said required or allowed such requests. It also said the decision was disproportionate and that the board had applied an unduly demanding standard by requiring it to prove there were no adverse effects.
The judge declined to consider the company’s argument under section 172 of the Planning and Development Act because it had not been included in the grounds on which leave for judicial review was granted. The company had made no application to add that ground, and the board objected to its introduction during the hearing.
On fair procedure, the court found the company had not shown that the board was obliged to request further information under sections 131 or 132. The judgment noted that the company had not sought the board’s advance opinion on the information needed for the rEIS, had not responded to concerns raised in the planning authority manager’s report, and had not adequately updated the information in its earlier 2008 environmental impact statement. The judge also referred to the inspector’s 2013 report and the absence of monitoring records while the quarry continued operating after 2008.
The court rejected the claim that the board required proof of a negative. It said the refusal rested on insufficient information to allow the board to assess whether significant adverse effects had occurred, rather than a requirement to prove the absence of any effect. The court refused all reliefs sought. The judgment did not itself make an enforcement order.