The High Court has refused an application by the State to strike out part of a judicial review challenging planning legislation in connection with substitute consent for a quarry.
The State argued that the challenge was inadmissible because of delay. It said the proceedings were, in substance, a collateral challenge to a 29 June 2012 decision by Donegal County Council. The council had directed a notice party to apply for substitute consent under the Planning and Development Act 2000, as amended. If the case was a collateral challenge to that decision, the State argued, it was out of time under section 52 of the Act.
Peter Sweetman said he was not challenging the council’s decision and strongly agreed with it. His case, he said, concerned An Bord Pleanála’s subsequent grant of substitute consent. He intended to argue that the Board had to consider whether the case was exceptional and whether the process offered the developer an opportunity to circumvent European Union rules. If the Board had that duty and failed to perform it, he argued, its decision was unlawful. Alternatively, he intended to argue that Irish law did not conform with EU law if it imposed no such duty.
Mr Justice Hedigan held that the judicial review was a direct challenge to An Bord Pleanála’s decision of 4 November 2014 granting substitute consent to a third-party developer, rather than a collateral attack on the county council’s decision.
The judge described the council’s role as identifying quarries that met statutory criteria and directing their developers to apply for substitute consent. He said the legislation did not appear to require the council to assess whether a case was exceptional or whether the process could allow EU rules to be circumvented. In his view, those issues could be considered by An Bord Pleanála.
As the proceedings were not a collateral challenge to the council’s decision, the delay issue did not arise. The judge refused the relief sought in the State’s motion. The judgment did not decide the substantive challenge to the grant of substitute consent or whether Irish law complied with EU law.