The High Court has ruled that An Bord Pleanála’s April 2023 order granting leave to apply for substitute consent was a nullity because no such application was before the Board. The Board has not decided the separate substitute consent application made by Patton Bros. Quarry Limited, and remains legally required to determine it.
The judgment, delivered by Ms Justice Emily Farrell on 11 September 2024, arose from the Board’s request for the court’s directions after it acknowledged an error in how it considered the company’s application. The court found that the application under section 177E of the Planning and Development Act 2000 remained live before the Board.
The company had applied for leave to seek substitute consent in 2016, and that leave was granted in February 2017. It then made its substitute consent application to the Board in August 2017. An inspector recommended granting consent subject to conditions in 2020. Later addendum reports addressed exceptional circumstances, but referred to section 177D, which concerns leave to apply, rather than the section 177E application requiring a decision on substitute consent.
At a meeting on 31 March 2023, the Board’s minutes recorded a decision to “Grant leave to apply for SU C”. Its April order likewise purported to grant leave under section 177D. The company only learned of that order when served with the proceedings in December 2023. The Board told the court it did not allege that the company or its lawyers caused the proceedings.
Justice Farrell concluded that the Board had purported to grant an application that was not before it. The record did not show that the Board had granted or refused the company’s section 177E application, and the absence of any decision on conditions reinforced that the error was fundamental rather than clerical. The court said the purported decision did not end the Board’s jurisdiction or duty to decide the live application.
The judgment did not itself grant or refuse substitute consent, or quash the April order: it held that order to be a nullity. The court said the application must be decided under section 177K, in accordance with law and without further unnecessary delay. Before setting a timeframe, Justice Farrell said she would hear the parties on whether a further inspector’s addendum might be required.