The High Court has refused applications by An Taisce and Peter Sweetman challenging An Bord Pleanála’s refusal to accept public submissions at the preliminary stage of a substitute-consent process for a quarry in Ballysax, Co. Kildare.
In a judgment delivered on 19 October 2017, Mr Justice Eagar held that the legislation did not provide a right for members of the public to make submissions when the Board considers whether to grant leave to apply for substitute consent. He refused all the reliefs sought by both applicants.
The notice party, Sharon Browne, owns and operates the quarry. The judgment says it is an unauthorised development for which no planning permission or other development consent was obtained, and no environmental impact or appropriate assessment was carried out. Kildare County Council had begun enforcement proceedings in the Circuit Court; those proceedings were adjourned in light of the judicial review cases.
The applicants had asked the court to quash the Board’s 14 October 2016 decision rejecting a submission, declare that public submissions must be permitted at the leave stage, and grant related relief under European environmental law and the Aarhus Convention. They argued that public input was needed before the Board decided whether exceptional circumstances justified allowing retrospective regularisation to be pursued.
The Board and the State respondents argued that the statutory process distinguishes between the preliminary leave decision and the later application for substitute consent. At the leave stage, the Board considers information from the applicant and may obtain information from the planning authority. The legislation expressly provides for public submissions at the later substitute-consent application stage.
The court accepted that distinction. It described the leave-stage process as limited to input from the developer and planning authority under the legislation, and said that the legislative intention was clear. If leave is granted and an application for substitute consent follows, the public can then make submissions under the statutory scheme. The judgment did not decide the merits of any eventual substitute-consent application, nor did it grant substitute consent.
The court also rejected the contention that the absence of submissions at the leave stage breached European law. It considered that public participation rights were available after leave was granted, when the application for substitute consent was made. The ruling concerns the right to participate at the preliminary leave stage; it does not remove the later opportunity for submissions described in the judgment.