The High Court has refused Michael Kelly’s application to quash An Bord Pleanála’s 2013 decision concerning a quarry in Roscommon, ruling that planning permission for an ancillary shed did not qualify as permission for the quarry’s operation under the relevant legislation.
In a judgment delivered on 25 July 2024, Ms Justice Miriam O’Regan said the case before her was confined to Kelly’s challenge against An Bord Pleanála (ABP). The proceedings also named Roscommon County Council, Ireland and the Attorney General, but the State respondents did not take part in the matter before the court.
The dispute arose under section 261A of the Planning and Development Act 2000. Kelly argued that permissions granted in 2006 for a stone bagging shed and associated site works, and in 2007 for wastewater treatment facilities, meant the quarry had been granted permission “in respect of” it. He said the quarry should therefore have been directed to apply for substitute consent rather than face an enforcement notice requiring it to cease unauthorised quarrying.
An ABP inspector had recommended setting aside the local authority’s determination, reasoning that permission had been granted on the quarry site and registration requirements had been met. ABP rejected that recommendation in October 2013, finding that permission for a shed ancillary to quarry activity did not satisfy the statutory requirement for permission in respect of the quarry.
The judge considered the wording of the planning legislation alongside earlier decisions and European law context concerning retrospective consent. She concluded that the qualifying permission under section 261A had to relate to the operation of the quarry. The 2012 government guidelines did not, in her view, establish that permission for a different activity would suffice; to the extent they were said to do so, that interpretation was incorrect.
Kelly also argued that ABP had not given adequate reasons for departing from the inspector’s recommendation. The court found that an objective observer familiar with the documents would understand ABP’s reason: it did not consider the shed permission to be the kind of permission contemplated by the legislation.
The court refused certiorari, leaving ABP’s 2013 decision in place. On costs, the judge expressed the provisional view that ABP should recover its costs, to be adjudicated if the parties could not agree. Kelly was allowed 14 days to make written submissions of up to 1,000 words if he disagreed; ABP could respond within a further 14 days. The judgment said the proposed costs order would be made if no such submissions were filed.