The High Court refused Cairde Chill an Disirt Teoranta leave to bring judicial review proceedings over the procedure for an appeal concerning planning permission for an explosives factory at Kildysart, County Clare.
The appeal to An Bord Pleanála followed Clare County Council’s decision to grant permission to Shannon Explosives Limited. At an oral hearing that opened on 21 October 2008, the applicant and An Taisce asked whether the appeal was a fresh consideration of the planning application or a review of the legality of the council’s decision under Article 10a of the Environmental Impact Assessment Directive. The inspector consulted the Board, which did not provide the requested clarification and required the hearing to proceed.
The applicant sought leave to challenge that response and to halt further processing of the appeal until the issue was resolved. It argued that Article 10a gave the public concerned access to a distinct legality review, and that participants needed to know which procedure applied and what arguments they could make. The court noted that the applicant had previously questioned the council’s decision over alleged non-compliance with a further-information request, in proceedings it later withdrew.
Justice Cooke found that the application rested on a mistaken understanding of Article 10a. Where an administrative appeal replaces the planning authority’s decision with a new decision, the Board’s decision is the operative development consent. The court said that decision would be open to judicial review of its substantive and procedural legality. It also said the Board appeal could serve as a preliminary administrative review, with court review available after the Board decided the appeal.
The judgment did not decide whether Article 10a had direct effect in Irish law, describing that possibility as highly doubtful. Nor did the court determine whether the appeal hearing’s scope or nature should be changed. It held that the arguments raised no substantial ground for the proposed relief and refused leave. The court said the applicant would not lose its right to seek review by participating in the appeal hearing; any such review would lie against the Board’s eventual decision.