The Court of Appeal has dismissed an appeal by Ireland and the Attorney General against a High Court decision refusing to strike out part of Peter Sweetman’s judicial review proceedings over substitute consent for a quarry in Croaghonagh, Ballybofey, Co. Donegal.
The appeal concerned a preliminary procedural question, not the lawfulness of the quarry consent itself. The State argued that Sweetman’s challenge to planning legislation was, in substance, an attack on a Donegal County Council decision made on 29 June 2012. It said the challenge was brought outside the statutory eight-week time limit.
Sweetman’s judicial review, for which the High Court granted leave in January 2015, principally challenges An Bord Pleanála’s 4 November 2014 decision to grant substitute consent. He argues that the board could not lawfully grant retrospective consent without considering whether exceptional circumstances existed and whether EU law had been circumvented. In the alternative, he argues that the relevant provisions of the Planning and Development Acts are inconsistent with EU law if they do not require those matters to be examined.
The State sought to strike out the claim against it, remove certain grounds, set aside leave for those grounds, or have a preliminary issue tried. The High Court refused the application. Hedigan J. found that the proceedings directly challenged the board’s 2014 decision and did not collaterally attack the council’s earlier decision, which enabled the quarry operator to apply for substitute consent.
In a judgment delivered on 25 April 2016, Mr Justice Mahon agreed with the High Court’s reasoning and dismissed the State’s appeal. The Court of Appeal therefore left the High Court’s refusal to strike out the proceedings in place. It did not determine the substantive judicial review, decide whether the board’s consent was lawful, or rule on whether the legislation complies with EU law.