The Supreme Court has dismissed an appeal by Ireland and the Attorney General against a decision allowing Peter Sweetman’s challenge to An Bord Pleanála’s grant of substituted consent for a quarry in Co Donegal to proceed.
The appeal concerned whether Mr Sweetman’s case was an out-of-time collateral challenge to an earlier decision by Donegal County Council. The council’s 2012 decision opened the way for the quarry operator to apply for substituted consent. The State argued that Mr Sweetman had missed the deadline to challenge that council decision and could not attack it indirectly by challenging the Board’s later consent.
Mr Sweetman said he accepted that the council had acted in accordance with the relevant statutory requirements. He argued that his case challenged the Board’s decision of 4 November 2014, on the basis that the Board had failed to assess whether exceptional circumstances justified retrospective consent. In the alternative, he argued that the legislation was incompatible with European law if it did not require such an assessment.
The High Court and Court of Appeal rejected the State’s application, finding that the case was directed at the Board’s decision. The State appealed to the Supreme Court.
Delivering judgment on 23 January 2018, Chief Justice Clarke said a collateral challenge should prevent a later case from proceeding only where it is clear that an earlier stage of a process was intended to decide the relevant issue finally. If that earlier decision was not challenged within the applicable time limit, a later challenge based on its invalidity may be barred.
The Chief Justice said this was not a clear case for stopping the proceedings at the outset. The court could not determine whether the challenge was collateral without addressing substantive questions, including whether European law required an individual assessment of exceptional circumstances and, if so, at what stage of the process it had to occur. The judgment noted that the legislation did not make clear that this issue had to be decided by the council rather than the Board.
The Supreme Court upheld the lower courts’ decisions and dismissed the State’s appeal. It did not decide whether the Board was required to assess exceptional circumstances, or whether the substituted-consent regime complied with European law. Those substantive issues remained for the underlying proceedings.