The High Court has refused a quarry operator’s application for a certificate allowing it to appeal a judgment that upheld planning decisions concerning its quarry at Largybrack, Co. Donegal.
Mr Justice Cian Ferriter delivered the decision on 31 July 2023. The application concerned two judicial review cases brought by Donal McMonagail Agus a Mhich Teoranta, trading as McMonagle Stone. In a judgment delivered on 28 April 2023, the court had upheld An Bord Pleanála’s decisions and the enforcement notices at issue in the earlier proceedings.
The first case challenged a 2012 Donegal County Council determination that the quarry required an environmental impact statement and appropriate assessment. The Board upheld that determination in 2013, after which the Council served an enforcement notice. The second case challenged the Board’s April 2020 refusal to grant leave to apply for substitute consent, which the company had sought to regularise the quarry’s planning status.
The company asked the High Court to certify proposed questions of law for appeal to the Court of Appeal, arguing that they were of exceptional public importance and that an appeal was desirable in the public interest. Several questions concerned whether the Board had to invite the operator to comment on information it had not supplied, particularly aerial photographs used to assess the quarry’s historical use.
Justice Ferriter said four of the ten proposed questions did not arise from his earlier judgment. Those concerned the standard of judicial review and whether refusal of substitute consent permanently prevented the land from being regularised. He said the earlier case had been confined to fair procedures and did not determine those matters.
The remaining questions also failed to meet the statutory threshold, the judge found. The earlier judgment had proceeded on the basis that serious matters were at stake and that a heightened level of fair procedures was appropriate. But the company’s challenge had been rejected on the specific facts: it should have anticipated that publicly available aerial photographs might be considered and could have sought them. The court also rejected, on the facts, a separate fair procedures argument about how the Board’s inspector dealt with material concerning quarrying before 1964.
The judge said the case applied established fair procedures principles to its particular facts and raised no uncertainty or evolving legal issue of exceptional public importance. He therefore refused certification of leave to appeal under section 50A(7) of the Planning and Development Act 2000. The ruling addressed permission to appeal; it did not reconsider the earlier judgment’s merits.