The High Court has quashed most of 11 decisions that allowed developers to seek retrospective planning consent, finding that the decisions were made under a regime that denied the public an opportunity to participate in a key environmental assessment.
Mr Justice Garrett Simons delivered his ruling on 23 April 2021. The cases concerned “stage-one” decisions by An Bord Pleanála that developers had shown “exceptional circumstances” allowing them to apply for consent after carrying out projects subject to the Environmental Impact Assessment Directive.
The Supreme Court had ruled in July 2020 that the planning process then in force breached the Directive because the public could not make submissions before the Board’s decision on exceptional circumstances became final. The legislation was amended in December 2020 so that exceptional circumstances could be reconsidered at the later consent stage. The High Court did not rule on whether the amended law complies with EU law.
The judicial reviews were brought between the Supreme Court ruling and the legislative amendment. The High Court said the challenged decisions were invalid when the cases began. The applicants were therefore entitled to orders of certiorari, which set aside the decisions, unless the court considered the amended law or a later consent application addressed the breach.
The court rejected the State respondents’ and the Board’s argument that most cases had become moot because the developers no longer intended to pursue consent applications. Without a later stage, the judge said, there would be no opportunity for public participation to correct the earlier decisions. He also identified a risk that a planning authority might mistakenly rely on the Board’s earlier findings in enforcement proceedings.
The judge ordered certiorari in the cases where the developers would not pursue consent applications. He adjourned two cases generally, with liberty for any party or the Board to re-enter them, because it remained unclear whether applications would be made. He retained control of those cases and said the pleadings could be amended to challenge the new legislation if necessary.
The court stressed that its ruling was confined to these proceedings, which concerned decisions made under the old regime during the period between the Supreme Court judgment and the amendment. It does not establish that a stage-one decision under the amended regime is invalid where a developer does not pursue consent.
The State respondents had agreed to pay the applicants’ costs. The judge said he would make costs orders in their favour under the usual adjudication process if that agreement remained in place. The 11 cases were provisionally listed for 7 May 2021 to address outstanding issues.