The High Court has refused Liscannor Stone Limited’s challenge to decisions concerning quarrying at a Clare site, including a direction to apply for substitute consent. The court also struck out the company’s constitutional claim against the State respondents.
In a judgment delivered on 4 December 2020, Ms Justice O’Regan found that An Bord Pleanála’s decision was rational, reasoned and within its jurisdiction. The company had sought to quash that decision, as well as decisions by Clare County Council, and to have section 261A(4)(a) of the Planning and Development Act 2000 declared unconstitutional.
The dispute arose from the Council’s 2012 assessment of the quarry. It found that quarrying had taken place after relevant European environmental assessment rules took effect, without the required environmental impact assessment and appropriate assessment. The Council also found that registration requirements had not been met and gave notice of its intention to issue an enforcement notice. An Bord Pleanála later set aside the finding that registration requirements were unmet, but directed the company to apply for substitute consent. It identified three parcels for the application and said the remedial environmental documents should consider the wider holding and quarry activity there.
The company argued that quarrying began before 1 October 1964 and had remained within its historic scale, so it should not have to go through the substitute consent process. The judge said the company had not shown that the quarry remained within a pre-1964 envelope. The record included evidence of areas marked as disused, a 1975 planning application for part of the quarry, later quarrying beyond what might have been anticipated in 1964, and machinery inconsistent with the company’s registration information. An affidavit identifying a period of abandonment and non-use had not been answered by a later affidavit from the company.
The judge followed the recent High Court decision in JJ Flood, which held that remaining within pre-1964 quarry use does not automatically exempt a quarry from the environmental directives. She said the company had not shown that it was an appropriate candidate for a reference to the Court of Justice of the European Union on that issue.
The court also refused to quash An Bord Pleanála’s decision on discretionary grounds. The judge considered that the Council’s separate decision remained valid and that quashing the Board’s decision alone would leave the company worse off, given the Council’s notice of intended enforcement action.
The constitutional claim was struck out because it was stated in general terms and lacked the particulars required by the rules governing judicial review. The court refused all the reliefs sought.